marriage equality

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • April 3, 2013

    by Jeremy Leaming

    Even before the U.S. Supreme Court heard oral argument in two cases dealing with government discrimination of gay couples who want to get married, a growing chorus of legal scholars and others urged the high court to move slowly. Because, according to these folks, if the justices declare that lesbians and gay men have a constitutionally protected right to wed, a backlash against the marriage equality movement could be unleashed.

    And proof for such a backlash centers on the high court’s 1973 Roe v. Wade opinion, which found that the right of privacy includes the right of women to make their own decisions on abortion. According to proponents of moving slowly on marriage equality, Roe sparked a backlash against growing support of abortion and now we have state after state trying to trample the fundamental right. Therefore the backlash proponents argue that the justices should learn from Roe and avoid handing down a ruling that would end government discrimination against gay couples seeking to wed. This backlash story has been fueled in part by Justice Ruth Bader Ginsburg, who while defending the Roe decision, said the Court moved to fast.

    But as an editorial in The New York Times notes, the backlash proponents are basing their argument on a “false reading of politics before and after Roe v. Wade ….” The editorial cites the work of ACS Board Members Linda Greenhouse and Reva Siegel, both teach at Yale Law School, documenting the fact that the fevered opposition to reproductive rights was forming long before the high court handed down Roe.

    In a 2010 interview with ACSblog, highlighting their Before Roe v. Wade book, Greenhouse and Siegel said the documentation they collected for the book showed “that, contrary to the commonly expressed view that it was the Supreme Court and its decision that unleashed a ‘backlash’ against abortion reform, a vigorous counter-movement was forming well before Roe. In the late 1960s, as public support for liberalization surged, the Catholic Church helped organized an anti-abortion movement to oppose liberalization in every state legislature and court considering abortion laws. Strategists for President Nixon’s 1972 re-election then decided to denounce ‘permissive’ abortion laws to attract Catholics from their longtime affiliation with the Democratic Party and court the support of a ‘silent majority.’”

     

  • March 29, 2013

    by Jeremy Leaming

    During oral argument in the case raising constitutional challenges to California’s anti-gay law, Proposition 8, Justice Antonin Scalia sought to help out the attorney defending the law, by providing him “some concrete things.”

    One of the supposed concrete things Scalia pushed, as The Washington Post’s Ezra Klein notes, was anything but. Scalia claimed that there is “considerable disagreement among” sociologists over the effects on children raised by same-sex couples. But as Klein reports that is simply not true and Scalia should have known that.

    In a friend-of-the-court brief before the high court, the American Sociological Association said, “The clear and consistent consensus in the social science profession is that across a wide range of indicators, children fare just as well when they are raised by same-sex parents when compared to children raised by opposite-sex parents.”

    Klein blasts Scalia for pushing a supposedly “concrete” example of the harm that could occur if states were to stop excluding same-sex couples from marriage. “Scalia offered no details or evidence of this considerable disagreement among sociologists, and it’s hard to believe he’s a better judge of the profession than the ASA, whose brief he notably declined to mention,” Klein wrote.

  • March 29, 2013

    by Caroline Fredrickson, ACS President. This piece is cross-posted on The Huffington Post.

    It has to do with "our dignity," being able to be who we are openly. That's what Edith S. Windsor the woman challenging the cramped definition of marriage embedded in the so-called Defense of Marriage Act (DOMA) said in a documentary about her longtime relationship with Thea Spyer. The two were married in Canada, a country that does not exclude lesbians and gay men from marriage, after more than 40 years together and not long before Spyer died of complications related to multiple sclerosis.

    The U.S. Supreme Court heard oral argument in the case lodged by Windsor and in another case challenging California's ant-gay law, Proposition 8, which stripped lesbians and gay men of the right to wed in that state. It's difficult to predict how the Court will rule based solely on oral argument. But a consensus is building among many court-watchers that the justices appeared likely to move only incrementally on marriage equality.

    In the Prop 8 case, Hollingsworth v. Perry, the justices dwelled heavily on a threshold question - is a handful of Prop 8 proponents the right group to defend the law before the Court. If the justices toss the case on procedural grounds, it likely means that lesbians and gay men can resume obtaining marriage licenses in that state, but would have no effect elsewhere. In the DOMA case, U.S. v. Windsor, the justices also focused heavily on standing, but when they turned to the substance of the case - a constitutional challenge to the federal government's narrow definition of marriage - several of the justices seemed far more concerned about the law's impact on federalism than on equal protection. Thus a majority of justices may be ready to invalidate DOMA's central provision, but on very narrow grounds. So in both cases the Court could provide very little progress on a core question - should laws that classify lesbians and gay men for unequal treatment be subjected to a much tougher constitutional test?

    Supporters of marriage equality in both cases urged the justices to find that laws targeting gay men and lesbians should be subjected to a heightened scrutiny when challenged in court. In other words, the government would have to show a compelling interest in enforcing a discriminatory law - a very difficult test to meet. The high court, however, can avoid that declaration and questioning during oral argument in both cases suggested that may be what occurs. On marriage alone, however, it is unlikely - regardless of how the Court rules -- that the robust movement for marriage equality will stall. These cases have made the question over marriage an easier one for many Americans to answer.

  • March 27, 2013

    by Jeremy Leaming

    In a powerful, personal piece for USA Today, the Constitutional Accountability Center’s Judith Schaeffer explains why it’s far past time for the demise of the so-called Defense of Marriage Act.

    Schaeffer, vice president of CAC and a longtime attorney handling constitutional matters, and her partner Eileen Ryan had hoped to get married in 2004 after then-San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to same-sex couples. Schaeffer and Ryan planned a trip to San Francisco to wed, after nearly 26 years together, but the California Supreme Court moved too quickly and shut down “Mayor Newsom’s noble endeavor,” Schaeffer writes. Subsequently the couple was able to wed in Canada. Schaeffer notes the couples’ “wedding announcement joyfully expressed our ‘gratitude to the enlightened people of Canada.’”

    Now before the U.S. Supreme Court are two cases that could decide whether lesbian and gay couples have a constitutional right to wed. As noted here yesterday, oral argument in the first case, Hollingsworth v. Perry, which involves a constitutional challenge to California’s ban on same-sex marriage, did not bode well for a high court opinion declaring that same-sex couples have a constitutional right to marry. (It appeared the justices were searching for a way to avoid reaching the question; and tossing the case on standing grounds may well be that avenue.)