My gay SCOTUS thoughts

By , June 27, 2013 7:54 am

The rainbow flag

The rainbow flag

Yesterday the Supreme Court ruled on two gay marriage cases. The first one is the simpler of two.

This is important – I consider gay marriage to be the defining civil rights issue of our time.

DOMA ruling
Section 3 of the Defense of Marriage Act – DOMA – specified that the federal government did not have to provide benefits to same sex spouses. Today’s ruling strikes that provision. It does not say that people have the right to a same sex marriage – only that the federal government must provide benefits to their spouses if they are legally married under state law.

This ruling is no suprise to me and I’m glad it went the way it did. DOMA Section two remains in place. That basically says that a state does not have to recognize a same sex marriage that happened in another state.

Proposition Eight ruling
This case to me was the one that had the potential to put the gay marriage argument to rest once and for all. It did not quite reach that level, but it is a step forward. The case and its ramifications are significantly more complicated but I’ll take a stab at summarizing it.

In 2008, California passed Proposition 8 – a change to California’s constitution which defined marriage as being between a man and a woman. US District Court ruled in Perry V Schwarzenegger that Prop. 8 violated equal protection provisions in the Fourteen Amendment and was therefore unconstitutional. A Ninth Circuit Court of Appeals panel agreed with the decision.

The state did not appeal the decision. Supporters of Prop. 8 appealed the decision themselves and eventually Hollingsworth v. Perry came to the Supreme Court. SCOTUS ruled that parties who brought the suit did not have standing to appeal the previous rulings on Prop. 8.

The crux of the matter
Since SCOTUS did not rule directly on Prop. 8 it means that current federal case law as stated in Perry v Schwarzenegger stands. That case law says that same sex marriage can not be made illegal because doing so violates due process and equal protection clauses of the Fourteenth Amendment. States that currently have bans on same sex marriage will keep them until they are individually challenged in court. Eventually one of these dam buster cases will make it to the Supreme Court – a pure appeal of a state law or constitution clause that bans same-sex marriage. Yesterday the court punted on saying that directly.

In a nutshell – denying gay people the right to marry is a clear violation of the Fourteenth Amendment. The states with bans on same-sex marriage are standing on very shaky ground that is likely to collapse beneath them.

Have a gay day.

5 Responses to “My gay SCOTUS thoughts”

  1. bogofree says:

    Why is this even an issue before the court? Why are states even involved in an issue that is private, personal and has no impact on anyone else. Just the Libertarian in me.

  2. bumpkin says:

    Agree bogo. The court would never have to deal with this if zealots stopped passing bans on gay marriage and laws discriminating against them.

  3. Rich P says:

    I personally don’t care who marries who, but I think the reason that this is before the courts is because it is a legal term based on thousands of years of practice, family values, up-bringing of children, etc. Over these years, society as a whole and then through our elected representatives of this society, have deemed that the best way to procreate, advance the civilization, (the USA in this case), carry on the natural order of our existence and grow a country in the best way possible, was to put certain measures in place to promote these values, based on these principals.

    Now these measures and moral standards may or may not be accurate but I believe that is how it got into the legal system in the first place.

    I personally believe homosexual couples should have the same rights as any heterosexual couple with regards to any government benefit and liability like taxes, so we are all equal. Any benefit AND any tax or anti-benefit should be applied to all.

    The other part of this issue that may be harder to explain is IF someone has 2 or more significant others. Once you open up the definition, I am not certain you can make the argument that a person cant love and marry two people. And if you open up that, do we as a society believe that is a positive trend to advance our society? If we don’t think so, it brings us back to why the courts are looking at this from a legal issue.. Quite the quandary…

  4. bumpkin says:

    The plural marriage question is an interesting one. If we are going to allow gay marriage – I and think we should/must – under what grounds would be refuse to recognized plural marriages? I would be in favor of relegating marriage to something that only is recognized by a church — and that for all other legal purposes you would have a civil union that is recognized by the state. As far as plural marriage goes, that is a whole kettle of fish. Imagine the problems with tax law and benefits? How would an employer feel about hiring an employee and then having to supply benefits for his 15 spouses and 45 children? Regardless of the complication of plural marriage – it shouldn’t be allowed to pollute the gay marriage issue. It is separate though related.

  5. bumpkin says:

    And Rich – I would take exception with “we as a society believe that is a positive trend” because sometime society is just wrong. There was a time when interracial marriages were banned for that sort of reasoning. We have to go with what is just and what is fair and not what we wish.

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