marriage equality

  • June 12, 2013

    by Jeremy Leaming

    Forty-six years ago the U.S. Supreme Court in a bold move for equality invalidated state laws banning interracial marriage.

    The case, Loving v. Virginia, centered on a Virginia law barring marriages between people of different races, but its outcome was sweeping, leaving similar laws constitutionally suspect. The law was challenged as a violation of the Constitution’s Equal Protection and Due Process Clauses. It involved an interracial couple, residents of Virginia, who married in the District of Columbia, which did not have a racist ban on marriage. When Mildred Jeter, an African-American woman, and Richard Loving, white, returned to Virgina they were eventually charged with and convicted of violating the law.

    The couple challenged the conviction, lost in the lower courts and the Supreme Court took the case for review.

    Writing for the majority, Chief Justice Earl Warren noted that Virginia was one of 16 states that prohibited such marriages. “Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period.”

    The Warren majority, however, concluded that such laws could not comport with the Constitution’s promise of equality and due process under the law.

    “There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race,” Warren wrote. “The Statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subject to the ‘most rigid scrutiny,’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”

    Warren continued, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”

  • May 7, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court tries to figure out how it will handle California’s anti-equality law, Proposition 8, and the federal government’s equally noxious Defense of Marriage Act, a number of progressive-leaning states are moving forward on expanding liberty.

    Last week Rhode Island become the 10th state to enact legislation allowing same-sex couples to wed and it appears Minnesota and Delaware may be closely following suit. Before the Rhode Island legislature gave final approval of the marriage equality measure R.I. Gov. Lincoln D. Chafee (I), celebrated the impending law, saying, “We will be open for business, and we will once again affirm our legacy as a place that is tolerant and appreciative of diversity.”

    The Minnesota House has scheduled a vote for this week on a marriage equality bill, the Pioneer Press reports. The newspaper reports that the House speaker has determined he has the requisite votes to pass the measure and send it to the Senate, where its leaders say they are confident they have the votes to approve it. Gov. Mark Dayton said he would sign the marriage equality bill into law.  

    Delaware lawmakers are also on the verge of advancing equality. The state House has already passed a bill recognizing same-sex marriage and the Senate, the Associated Press reports, is preparing to vote today on the measure. The AP also notes the state’s Democratic Gov. Jack Markell has “promised to sign the measure ….”

    While marriage equality is hardly the capstone of LGBT equality, it is nonetheless an important part of the efforts to achieve equality under the law. (In this post, it’s noted that federal lawmakers are pushing other measures to protect LGBT people in the workforce and LGBT military families.)

    The states moving to end discrimination against same-sex couples – at least in the arena of granting marriage licenses and state benefits that come with legally recognized unions – provide a strong argument for federalism. That is, many argue – including some pro-equality individuals and groups – that states are moving along to recognize same-sex marriage and there is no reason for the Supreme Court to upset the process by, say, finding that states refusing to recognize same-sex marriage are violating the equal rights of lesbians and gay couples.

  • 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.