SCOTUS Gives Victories on Marriage

The Supreme Court of the United States has given victories on marriage, although just about the weakest possible. They issued decisions on the federal DOMA, which denied equal treatment to same-gender marriages under federal law, and California's Proposition 8 (Prop H8). DOMA is dead! In the PropH8 case, they decided those defending the discrimination didn't have standing to defend it.

The basic gist is that progress was made, but the Court did not recognize that there is a right for an adult to marry any and all consenting adults, or even that a gay or lesbian person has a right to the limited same-gender freedom to marry.

So, congratulations to all who will now have their marriage treated equally under federal law & to Californians who will again have the  freedom to marry the person they love. But we must remember there are still many people in many states who are denied their right to marry the person or persons they love.

We will keep fighting to make sure all adults have relationship rights, including full marriage equality, sooner rather than later.

Read more »

Posted in: boundaries,California,courts,DOMA,freedom to marry,law,LGBT,marriage equality,Proposition 8,same-sex,USA

SCOTUS Gives Victories on Marriage

The Supreme Court of the United States has given victories on marriage, although just about the weakest possible. They issued decisions on the federal DOMA, which denied equal treatment to same-gender marriages under federal law, and California's Proposition 8 (Prop H8). DOMA is dead! In the PropH8 case, they decided those defending the discrimination didn't have standing to defend it.

The basic gist is that progress was made, but the Court did not recognize that there is a right for an adult to marry any and all consenting adults, or even that a gay or lesbian person has a right to the limited same-gender freedom to marry.

So, congratulations to all who will now have their marriage treated equally under federal law & to Californians who will again have the  freedom to marry the person they love. But we must remember there are still many people in many states who are denied their right to marry the person or persons they love.

We will keep fighting to make sure all adults have relationship rights, including full marriage equality, sooner rather than later.

Read more »

Posted in: boundaries,California,courts,DOMA,freedom to marry,law,LGBT,marriage equality,Proposition 8,same-sex,USA

US Supreme Court Should Make Bold Move For Equality

The US Supreme Court has heard arguments about both DOMA and Prop H8 and could issue a ruling any day now. DOMA denies same-gender marriages recognition at the national level and has been very problematic, including for members of the US military and immigrants. Prop H8 took away the same-gender freedom to marry in California. Cases about both laws had been making their way through the courts and are now at the Supreme Court. There are many possible outcomes, some seen as more likely than others. It is possible that the Court could end up ruling next month, in June, to strike down DOMA so that same-gender marriages granted in states that currently have them will be recognized by the federal government, and letting lower court decisions striking down Prop H8 stand, so that California will again have the limited same-gender freedom to marry. It is also possible the Court may rule in a way that brings about the limited same-gender freedom to marry nationwide.

We want the US Supreme Court to make the best possible ruling, which is to recognize relationship rights, including full marriage equality, for all adults nationwide.

The Court should rule that…

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

There are many reasons why the Court should do this.

1. There are American adults, and in some cases their children, suffering right now because of discriminatory laws preventing them from marrying or even just being together. If we really care about children, equality, stability, security, and valuing family, we will let people decide for themselves what kind of relationships they will have, including marriage, if they want to marry.

2. As Court precedent states, marriage is a fundamental civil right.

3. As Court precedent states, consensual sex is part of the liberty protected by due process under the Fourteenth Amendment.

4. As Court precedent states, when the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.

5. Freedom of association for consenting adults is a basic Constitutional right. Just as there is no good reason to ban interracial relationships or marriage, there is no good reason to ban same-gender relationships or marriages, polyamorous relationships or polygamous marriages, or consanguinamorous relationships or consanguineous marriages. There is no good reason to limit marriage to narrowly exogamous heterosexual couples.

6. Freedom of religion is a basic Constitutional right. One group’s religion should not deny the rights of other consenting adults to be together or marry. Conversely, some religions recognize or promote marriages currently banned under laws in most or all fifty states, depending on the marriages.

7. A Court ruling recognizing relationship rights and full marriage equality for all adults will provide what the Constitution requires: equal protection, rather than a piecemeal approach of this freedom to marry or that form of civil union. Equality just for some, or in some aspects but not others, or in this state but not that state, is notequality. The Constitutional principles of equal protection, freedom of association, freedom of religion, and the right to privacy, along with basic fairness, rational reflection, and compassion, necessitate that the US government ensure the rights of all adults.


8. The momentum within the US, neighboring countries, and the modern world is for marriage equality. Full marriage equality is inevitable, as even many opponents of equality admit. So it is pointless to drag the fight out. The Court can end the uncertainties and inconsistencies, and end the hateful, destructive, confusing, costly state-by-state fights that often pit older generations against younger generations, by putting the US on the right side of history sooner rather than later and recognizing relationship rights for all adults. More and more US states are adopting the limited same-gender freedom to marry. Many others have domestic partnerships or civil unions. Utah criminalizespolyamory while other states allow polyamory but do not protect polyamorists and deny the polygamous and polyamorous freedom to marry. Some states allow first cousins to marry monogamously without restriction, other states allow them to marry with restrictions, some states ban this freedom to marry entirely, and a couple of states even criminalize sex between first cousins. Some states allowing any adults who are closer relatives their sexual rights with each other while other states ban those rights.

9. Full marriage equality will end inequalities and confusion in immigration policies.

10. Recognizing relationships rights, including full marriage equality, for all adults is good for business, as many businesses have publicly stated. Their employees will no longer be treated as second-class citizens, their human resources departments will not have to deal with state-by-state conflicts, and employees will be free to move (temporarily or permanently) from one location to another without facing different restrictions on their relationships.

11. Government employees, including the men and women serving in our military, will not have to face different restrictions on their relationships from place to place.

Nobody should fear being arrested and imprisoned for having a consensual relationship with other adults.

Nobody should be denied the freedom to marry other consenting adults.

There are people who love each other, who have been living as spouses, even have children together, who are denied their rights, who need and want full marriage equality.

Let’s get on the right side of history sooner rather than later, and put the hate, bigotry, and bullying behind us. The US Supreme Court should protect the rights of all adults in all states.

Read more »

Posted in: boundaries,courts,DOMA,freedom to marry,law,LGBT,marriage equality,polyamory,Proposition 8,solidarity,USA

US Supreme Court Should Make Bold Move For Equality

The US Supreme Court has heard arguments about both DOMA and Prop H8 and could issue a ruling any day now. DOMA denies same-gender marriages recognition at the national level and has been very problematic, including for members of the US military and immigrants. Prop H8 took away the same-gender freedom to marry in California. Cases about both laws had been making their way through the courts and are now at the Supreme Court. There are many possible outcomes, some seen as more likely than others. It is possible that the Court could end up ruling next month, in June, to strike down DOMA so that same-gender marriages granted in states that currently have them will be recognized by the federal government, and letting lower court decisions striking down Prop H8 stand, so that California will again have the limited same-gender freedom to marry. It is also possible the Court may rule in a way that brings about the limited same-gender freedom to marry nationwide.

We want the US Supreme Court to make the best possible ruling, which is to recognize relationship rights, including full marriage equality, for all adults nationwide.

The Court should rule that…

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

There are many reasons why the Court should do this.

1. There are American adults, and in some cases their children, suffering right now because of discriminatory laws preventing them from marrying or even just being together. If we really care about children, equality, stability, security, and valuing family, we will let people decide for themselves what kind of relationships they will have, including marriage, if they want to marry.

2. As Court precedent states, marriage is a fundamental civil right.

3. As Court precedent states, consensual sex is part of the liberty protected by due process under the Fourteenth Amendment.

4. As Court precedent states, when the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.

5. Freedom of association for consenting adults is a basic Constitutional right. Just as there is no good reason to ban interracial relationships or marriage, there is no good reason to ban same-gender relationships or marriages, polyamorous relationships or polygamous marriages, or consanguinamorous relationships or consanguineous marriages. There is no good reason to limit marriage to narrowly exogamous heterosexual couples.

6. Freedom of religion is a basic Constitutional right. One group’s religion should not deny the rights of other consenting adults to be together or marry. Conversely, some religions recognize or promote marriages currently banned under laws in most or all fifty states, depending on the marriages.

7. A Court ruling recognizing relationship rights and full marriage equality for all adults will provide what the Constitution requires: equal protection, rather than a piecemeal approach of this freedom to marry or that form of civil union. Equality just for some, or in some aspects but not others, or in this state but not that state, is notequality. The Constitutional principles of equal protection, freedom of association, freedom of religion, and the right to privacy, along with basic fairness, rational reflection, and compassion, necessitate that the US government ensure the rights of all adults.


8. The momentum within the US, neighboring countries, and the modern world is for marriage equality. Full marriage equality is inevitable, as even many opponents of equality admit. So it is pointless to drag the fight out. The Court can end the uncertainties and inconsistencies, and end the hateful, destructive, confusing, costly state-by-state fights that often pit older generations against younger generations, by putting the US on the right side of history sooner rather than later and recognizing relationship rights for all adults. More and more US states are adopting the limited same-gender freedom to marry. Many others have domestic partnerships or civil unions. Utah criminalizespolyamory while other states allow polyamory but do not protect polyamorists and deny the polygamous and polyamorous freedom to marry. Some states allow first cousins to marry monogamously without restriction, other states allow them to marry with restrictions, some states ban this freedom to marry entirely, and a couple of states even criminalize sex between first cousins. Some states allowing any adults who are closer relatives their sexual rights with each other while other states ban those rights.

9. Full marriage equality will end inequalities and confusion in immigration policies.

10. Recognizing relationships rights, including full marriage equality, for all adults is good for business, as many businesses have publicly stated. Their employees will no longer be treated as second-class citizens, their human resources departments will not have to deal with state-by-state conflicts, and employees will be free to move (temporarily or permanently) from one location to another without facing different restrictions on their relationships.

11. Government employees, including the men and women serving in our military, will not have to face different restrictions on their relationships from place to place.

Nobody should fear being arrested and imprisoned for having a consensual relationship with other adults.

Nobody should be denied the freedom to marry other consenting adults.

There are people who love each other, who have been living as spouses, even have children together, who are denied their rights, who need and want full marriage equality.

Let’s get on the right side of history sooner rather than later, and put the hate, bigotry, and bullying behind us. The US Supreme Court should protect the rights of all adults in all states.

Read more »

Posted in: boundaries,courts,DOMA,freedom to marry,law,LGBT,marriage equality,polyamory,Proposition 8,solidarity,USA

They Know Equality Will Happen

Steve Sailer wrote at vdare.com that we'll eventually get the polygamous freedom to marry, and he says it will happen because of African immigrants. I get the impression he's not happy about it and is being sarcastic when referring to racism.

Whether someone is a bigot or not, it is good that more and more people realize we will get full marriage equality. We've seen that over the last few days when it comes to the DOMA and PropH8 cases before the US Supreme Court, and how defeated the anti-equality mouthpieces are sounding.

The sooner opponents of equality realize that it is inevitable, the sooner they can put their resources to things like, oh, protecting children (and adults) from predators. I know denying basic rights to other adults is high priority and all, but once they realize equality is going to happen whether they like it or not, they're less likely to waste their time and money.

They've claimed their opposition to equality has been for the protection of women and children. In their convoluted desperation, maybe some of them actually believe it. But every dollar or minute spent fighting another adult's right to marry is a dollar or minute that can't be spent feeding the hungry, sheltering, the homeless, treating the sick, or fighting crimes against children.

Read more »

Posted in: Africa,children,courts,DOMA,freedom to marry,Islam,law,LGBT,marriage equality,polygamy,prejudice,Proposition 8

They Know Equality Will Happen

Steve Sailer wrote at vdare.com that we'll eventually get the polygamous freedom to marry, and he says it will happen because of African immigrants. I get the impression he's not happy about it and is being sarcastic when referring to racism.

Whether someone is a bigot or not, it is good that more and more people realize we will get full marriage equality. We've seen that over the last few days when it comes to the DOMA and PropH8 cases before the US Supreme Court, and how defeated the anti-equality mouthpieces are sounding.

The sooner opponents of equality realize that it is inevitable, the sooner they can put their resources to things like, oh, protecting children (and adults) from predators. I know denying basic rights to other adults is high priority and all, but once they realize equality is going to happen whether they like it or not, they're less likely to waste their time and money.

They've claimed their opposition to equality has been for the protection of women and children. In their convoluted desperation, maybe some of them actually believe it. But every dollar or minute spent fighting another adult's right to marry is a dollar or minute that can't be spent feeding the hungry, sheltering, the homeless, treating the sick, or fighting crimes against children.

Read more »

Posted in: Africa,children,courts,DOMA,freedom to marry,Islam,law,LGBT,marriage equality,polygamy,prejudice,Proposition 8

SCOTUS Hears Same Sex Marriage Cases Today

We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

www.clarkstonlegal.com
info@clarkstonlegal.com

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Posted in: 14th Amendment,California,David Boies,Hollingsworth v Perry,Justice Ruth Bader Ginsburg,Proposition 8,Roe v Wade,same-sex marriage,SCOTUS,Ted Olson,Texas,United States v Windsor

Down with H8 - Up With Marriage Equality For All

With so many people filing papers with the US Supreme Court to argue against DOMA and Prop H8, I wanted to bump up this old entry because it is still relevant...




It is almost time for closing arguments in the trail against California Proposition 8, or “H8”. In the Washington Post, John D. Podesta and Robert A. Levy express their hope that a federal court will overturn Proposition 8. They write about gay couples, and I agree that gay couples should have the freedom to marry. However, I am disappointed that they do not express concern for other people looking for marriage equality.

Although we serve, respectively, as president of a progressive and chairman of a libertarian think tank, we are not joining the foundation's advisory board to present a "bipartisan" front. Rather, we have come together in a nonpartisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation's character. This is not about politics; it's about an indispensable right vested in all Americans.

I agree, and that is why we need full marriage quality.

As the country evolved, the meaning of one small word -- "all" -- has evolved as well. Our nation's Founders reaffirmed in the Declaration of Independence the self-evident truth that "all Men are created equal," and our Pledge of Allegiance concludes with the simple and definitive words "liberty and justice for all." Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

All should mean all.

Our history will soon be written by young people who are seizing the reins from the baby boomers. They seem prepared to reject laws that serve no purpose other than to deny two committed and loving individuals the right to join in a mutually reinforcing marital relationship.

I agree with this, except for the unnecessary restriction of “two.” Committed and loving individuals, no matter how many, regardless of gender or blood relation, should have the right to marriage. How about showing some solidarity? While Kris Perry and Sandy Stier should be able to marry and Paul Katami and Jeff Zarrillo should be able to marry, so should Linda, Melissa, and Matthew. Let’s fight so that all of them will get the right to marry. Do not participate in the oppression of triads, groups, sibling couples, parent-adult child couples, and others who should have the right to marry.

Read more »

Posted in: California,courts,freedom to marry,law,marriage equality,Proposition 8,solidarity

Down with H8 - Up With Marriage Equality For All

With so many people filing papers with the US Supreme Court to argue against DOMA and Prop H8, I wanted to bump up this old entry because it is still relevant...




It is almost time for closing arguments in the trail against California Proposition 8, or “H8”. In the Washington Post, John D. Podesta and Robert A. Levy express their hope that a federal court will overturn Proposition 8. They write about gay couples, and I agree that gay couples should have the freedom to marry. However, I am disappointed that they do not express concern for other people looking for marriage equality.

Although we serve, respectively, as president of a progressive and chairman of a libertarian think tank, we are not joining the foundation's advisory board to present a "bipartisan" front. Rather, we have come together in a nonpartisan fashion because the principle of equality before the law transcends the left-right divide and cuts to the core of our nation's character. This is not about politics; it's about an indispensable right vested in all Americans.

I agree, and that is why we need full marriage quality.

As the country evolved, the meaning of one small word -- "all" -- has evolved as well. Our nation's Founders reaffirmed in the Declaration of Independence the self-evident truth that "all Men are created equal," and our Pledge of Allegiance concludes with the simple and definitive words "liberty and justice for all." Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

All should mean all.

Our history will soon be written by young people who are seizing the reins from the baby boomers. They seem prepared to reject laws that serve no purpose other than to deny two committed and loving individuals the right to join in a mutually reinforcing marital relationship.

I agree with this, except for the unnecessary restriction of “two.” Committed and loving individuals, no matter how many, regardless of gender or blood relation, should have the right to marriage. How about showing some solidarity? While Kris Perry and Sandy Stier should be able to marry and Paul Katami and Jeff Zarrillo should be able to marry, so should Linda, Melissa, and Matthew. Let’s fight so that all of them will get the right to marry. Do not participate in the oppression of triads, groups, sibling couples, parent-adult child couples, and others who should have the right to marry.

Read more »

Posted in: California,courts,freedom to marry,law,marriage equality,Proposition 8,solidarity

Encouraging President Obama and the Supreme Court

According to this Associated Press article by Julie Pace…

The Obama administration is quietly considering urging the Supreme Court to overturn California's ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Barack Obama to rights for gay couples.

More and more US states are adopting the limited same-gender freedom to marry. Many others have domestic partnerships or civil unions. In the two neighboring countries, Canada has had the limited same-gender freedom to marry and Mexico is moving towards it nationwide. The US, as a country, is playing catch-up. How embarrassing.

I urge President Obama and the Court to boldly, strongly put the US in a leadership role and support protections based on sexual orientation and relationship rights and full marriage equality for all, rather than a piecemeal approach of this freedom to marry or that form of civil union. Equality just for some, or in some aspects but not others, or in this state but not that state, is not equality. The Constitutional principles of equal protection, freedom of association, freedom of religion, and the right to privacy, along with basic fairness, rational reflection, and compassion, necessitate that the US government ensure the rights of all adults.

Supporting relationship rights, including full marriage equality for all, will eliminate the impractical, unjust, and confusing inequalities in the law pertaining not only to some same-gender relationships, but in all adult relationships, including those that are polyamorous or consanguineous. Some of those inequalities include:

1. Utah’s criminalization of polyamory while other states allow polyamory but do not protect polyamorists and deny the polygamous and polyamorous freedom to marry.


2. Some states allowing first cousins to marry monogamously without restriction, other states allowing them to marry with restrictions, some states banning this freedom to marry, and even a couple of states criminalizing sex between first cousins.

3. Some states allowing any adults who are closer relatives their sexual rights with each other while other states ban those rights.

Nobody should fear being arrested and imprisoned for having a consensual relationship with other adults.

Nobody should be denied the freedom to marry other consenting adults.

There are people who love each other, who have been living as spouses, even have children together, who are denied their rights, who need and want full marriage equality.

Please, Mr. President, urge the Court and the American people to support equal rights for all. Please, to those who serve on the Court: end the discrimination.

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

Let’s get on the right side of history sooner rather than later, and put the hate, bigotry, and bullying behind us. Protect the rights of all adults in all states.

Read more »

Posted in: allies,boundaries,courts,DOMA,ENDA,freedom to marry,lack of equality harms,law,marriage equality,Proposition 8,USA

Encouraging President Obama and the Supreme Court

According to this Associated Press article by Julie Pace…

The Obama administration is quietly considering urging the Supreme Court to overturn California's ban on gay marriage, a step that would mark a political victory for advocates of same-sex unions and a deepening commitment by President Barack Obama to rights for gay couples.

More and more US states are adopting the limited same-gender freedom to marry. Many others have domestic partnerships or civil unions. In the two neighboring countries, Canada has had the limited same-gender freedom to marry and Mexico is moving towards it nationwide. The US, as a country, is playing catch-up. How embarrassing.

I urge President Obama and the Court to boldly, strongly put the US in a leadership role and support protections based on sexual orientation and relationship rights and full marriage equality for all, rather than a piecemeal approach of this freedom to marry or that form of civil union. Equality just for some, or in some aspects but not others, or in this state but not that state, is not equality. The Constitutional principles of equal protection, freedom of association, freedom of religion, and the right to privacy, along with basic fairness, rational reflection, and compassion, necessitate that the US government ensure the rights of all adults.

Supporting relationship rights, including full marriage equality for all, will eliminate the impractical, unjust, and confusing inequalities in the law pertaining not only to some same-gender relationships, but in all adult relationships, including those that are polyamorous or consanguineous. Some of those inequalities include:

1. Utah’s criminalization of polyamory while other states allow polyamory but do not protect polyamorists and deny the polygamous and polyamorous freedom to marry.


2. Some states allowing first cousins to marry monogamously without restriction, other states allowing them to marry with restrictions, some states banning this freedom to marry, and even a couple of states criminalizing sex between first cousins.

3. Some states allowing any adults who are closer relatives their sexual rights with each other while other states ban those rights.

Nobody should fear being arrested and imprisoned for having a consensual relationship with other adults.

Nobody should be denied the freedom to marry other consenting adults.

There are people who love each other, who have been living as spouses, even have children together, who are denied their rights, who need and want full marriage equality.

Please, Mr. President, urge the Court and the American people to support equal rights for all. Please, to those who serve on the Court: end the discrimination.

An adult, regardless of gender, sexual orientation, race, or religion, should be free to share love, sex, residence, and marriage with any and all consenting adults, without prosecution, harassment, or discrimination.

Let’s get on the right side of history sooner rather than later, and put the hate, bigotry, and bullying behind us. Protect the rights of all adults in all states.

Read more »

Posted in: allies,boundaries,courts,DOMA,ENDA,freedom to marry,lack of equality harms,law,marriage equality,Proposition 8,USA

SCOTUS Will Hear Two Same-Sex Marriage Cases

Readers of this Blawg know that we have been tracking the same-sex marriage issue as it has wound its way through the federal courts.  Late Friday, the SCOTUS granted certeriorari in two high-profile same-sex marriage cases.

One of the cases, now known as Hollingsworth v Perry, presents a 14th Amendment Equal Protection challenge to California's Proposition 8, a voter-based initiative that passed back in November 2008.  The proposition enshrines into California's constitution the proscription that only a marriage between a man and a woman would be valid and recognized in the state, thus invalidating prior state laws recognizing such unions.

The case, controversial from the beginning, has many same-sex marriage proponents nervous due to the possibility of an adverse High Court ruling.  These proponents prefer a state-by-state process; slow, sure and steady. 

Also, SCOTUS often dodges sweeping constitutional rulings when it can.  One obvious "out" for the High Court in this case is to rule that the proponents of Proposition 8, basically nothing more than a political lobby, lack proper standing in the case.  Indeed, the SCOTUS raised this issue in its order granting cert.  We here at the Law Blogger, however, hope that the Court will issue a decision on the merits of this important issue.

The second case challenges various provisions of the Defense of Marriage Act [DOMA].  Like the California case, the order granting cert in United States v Windsor also questions the constitutional standing of the intervenors, and provides options for SCOTUS' ultimate disposition.

DOMA, passed surprisingly in 1996 under President Clinton, contains provisions that deny federal rights and benefits to same-sex federal employees and, in the process, legislatively defines marriage as between a man and a woman.  Most legal scholars are predicting the demise of DOMA's no-longer-valid definition of a married couple. 

This, however, is different than expressly recognizing a constitutional right of marital union for same-sex couples; the interplay between the cases therefore will be critical.  Some pundits wonder if these are the "right" cases for SCOTUS selection from among the broad menu of same-sex cases percolating through the federal courts at this time.

Presently, 9 states have declared same-sex marriages legal; another 8 states have granted rights to same-sex couples that are similar to marriage.  If SCOTUS upholds DOMA, it will go down in history as one of the more collosal "botches" of all time; right there with the infamous decisions in Korematsu [upholding Japanese citizen internment following Pearl Harbor] and Bowers v Hardwick [upholding state laws banning consensual sodomy].

As our High Court now takes a look at these momentus cases, we should not forget that this is a tribunal with a mixed track record on such civil rights issues.  For example, in the same year,1967,  SCOTUS struck-down all state laws denying the right to marry between inter-racial couples, but ruled that "homosexuals" were, as a matter of law, persons afflicted with psychopathic personality.

My how things change over time.

www.clarkstonlegal.com
info@clarkstonlegal.com

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Posted in: DOMA,Fourteenth Amendment,Hollingsworth,Perry,Proposition 8,same-sex marriage,SCOTUS