marriage equality

  • June 18, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court prepares to issue opinions in two cases involving questions of marriage equality, San Francisco City Attorney Dennis Herrera talked with me about his office’s role in challenging discriminatory laws in California that resulted in the federal constitutional challenge to the state’s Proposition 8.

    In Hollingsworth v. Perry, the high court is considering constitutional challenges to Proposition 8, which bars California from recognizing same-sex marriages. The justices could avoid the constitutional questions if it were to dismiss the case on procedural grounds.

    Herrera (pictured) during the 2013 ACS National Convention discussed why the San Francisco Attorney’s Office so aggressively challenged the state’s laws discriminating against lesbians and gay men and why he does not favor an incremental approach to securing marriage equality.

    In the interview Herrera explains how his office helped spark the legal battle that eventually put Proposition 8 before the high court.

    “It has been an honor and privilege for our office to have been involved in what is the civil rights issue of our time,” Herrera said. “And we like to think that our involvement at least played some role in really moving the debate and contributing to the tremendous progress that we have seen, with incredible rapidity over the course of the last several years on the issue of marriage equality.”

    When asked whether the Supreme Court should avoid an opinion that would make all state bans on same-sex marriage constitutionally suspect, Herrera strongly supported an approach that would more quickly lead to marriage equality from coast to coast.

    “I do not think we should be in the position of abiding discrimination,” he said. “And I think we’ve been quite clear that we think everybody is entitled to equal protection under the law irrespective of sexual orientation.”  

    Herrera continued, “It’s about being on the right side of history, it’s about making sure that everybody is entitled to equal protection under the law. And I think that while there’s a political process going on it was a direct result of strong legal arguments and views that were made known. So I’m not one who, at least at this point, thinks that an incremental approach is something we need to follow. I think it’s time we deal with this issue once and for all.”

    Watch entire interview below or visit this link.

  • June 13, 2013
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

    The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

    Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula.  Section 5 might remain "on the books" but it would be essentially a dead-letter.

  • 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.