So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.
There will be two questions before the Supreme Court:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.
Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).
The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further? Read more…
Today, the US Supreme Court denied certiorari to challenges to decisions of the Fourth, Seventh and Tenth Circuit Courts of Appeal, which had in turn upheld decisions of federal district courts that bans on lesbian and gay couples from marrying in Indiana, Oklahoma, Utah, Virginia, and Wisconsin contravened provisions of the US Constitution.
This had the immediate consequence of bringing equal civil marriage to these five states. The effect of supreme court not taking a decision led to the biggest expansion by number of states seen to date.
The day continued, as Colorado dropped its challenge. So how does the Circuit system work, and which states could be next?
Beneath the Supreme Court, the United States is administered by geographically-based courts of appeals. This table details the division, with those states which at the time of writing have equal civil marriage for gay and lesbian couples highlighted in bold:
|1st||Maine, Massachusetts, New Hampshire, Rhode Island|
|2nd||Connecticut, New York, Vermont|
|3rd||Delaware, New Jersey, Pennsylvania|
|4th||Maryland, North Carolina, South Carolina, Virginia, West Virginia|
|5th||Louisiana, Mississippi, Texas|
|6th||Kentucky, Michigan, Ohio, Tennessee|
|7th||Illinois, Indiana, Wisconsin|
|8th||Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota|
|9th||Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington|
|10th||Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming|
|11th||Alabama, Florida, Georgia|
|DC||District of Columbia|
A rule of precedent applies at each of these levels. The district courts in the states are bound by decisions of the court of appeals of their own circuit, just as the circuit courts of appeal are bound by the supreme court. This is why the attorney-general in Colorado dropped the challenge so soon after the news today; with the decisions of the tenth circuit court of appeals that found bans in Utah and Oklahoma to be unconstitutional fully in effect, the same would result with any defence of the ban in Colorado.
We should then soon see a similar situation in North Carolina, South Carolina and West Virginia in the Fourth Circuit, and in Kansas and Wyoming in the Tenth, from a combination of state officials not defending the bans, and district court judges coming to swift decisions based on these precedents.
We are awaiting decisions from the Sixth Circuit, which heard arguments in the beginning of August, and from the Ninth Circuit, which heard arguments at the beginning of September. While the court in the Ninth Circuit seemed to follow the trend of most federal courts, in being more critical of the arguments for maintaining the bans, this is less certain in the Sixth Circuit. Listening to the oral argument, I would agree with Stern that Judge Sutton didn’t seem eager to press ahead with this. However, a few things have changed since early August, from Judge Posner’s excellent, cutting judgment in the Seventh Circuit, to the denial of cert by the Supreme Court today.
In the Sixth Circuit, Judge Sutton asked on a number of occasions why he would not be bound by the precedent of the Supreme Court in Baker v Nelson (1971), in which the court wrote succinctly on a Minnesota case on a gay couple, “The appeal is dismissed for want of a substantial federal question”. This was a mandatory review, so was considered binding on the merits. However, with the denial of cert today, Judge Sutton can no longer hide behind Baker, as the Supreme Court has effectively that it doesn’t see the decisions favouring equality as a challenge to its precedent.
I don’t think the Supreme Court will hear a case unless and until any of the circuit courts uphold the constitutionality of a state ban. This could occur in the Sixth Circuit; it could also occur in the Fifth Circuit, which will be hearing cases relating to Texas and Louisiana soon. These are appeals to ban in Texas which was struck down, and a ban in Louisiana which will be upheld.
Equality advocates want the Supreme Court to hear a case on this matter sooner rather than later, to lead to an opinion that with one fell swoop would bring equal civil marriage to gay and lesbian couples across the whole of the United States. There is little reason to suppose that any of the five who voted to strike down a section of the Defense of Marriage Act in United States v Windsor (2013) would not also strike down all bans as unconstitutional, least of all the one who wrote that judgment, Justice Anthony Kennedy. The four who would have upheld DOMA surely suppose the same thing of their colleagues as the rest of us.
There is another interest too here, that of standing by the sovereignty and competence of lower courts. It is within their remit to determine constitutional questions within their jurisdiction; the Supreme Court should not hear a case simply because there’s public demand for a decision of a lower court to be extended.
It takes four justices to grant cert to a case. In the case of these circuit decisions, the five were of course happy to let them stand; the four may not have agreed with them, but not either wish to hasten the moment when the court would rule for equality for all.
This is why supporters of equality might paradoxically hope that either the Fifth or Sixth Circuit Courts of Appeals will decide to uphold bans. Not only would there then be a circuit split, but a result the anti-DOMA 5 would surely feel confident to see challenged before the whole court.
We’ll wait and see.
The new term of the US Supreme Court begins today, and their docket for this term will begin to fill up. The nine members of the court decide themselves which cases to hear, of the many appeals from lower court decisions across the country. Among they many they could choose this term are a number of defences to state bans on either the recognition or performance of marriage between couples of the same sex. This would lead to a decision affecting all US states by June 2015. It is not long since the Supreme Court last considered cases relating to marriage, when they ruled on United States v Windsor in 2013, leading the federal recognition of marriages between same-sex couples as performed by these states. Why makes these cases different?
A lot of the commentary in June 2013 spoke of the compromise the court reached, in striking down the ban on federal recognition in Section 3 of the Defense of Marriage Act (DOMA), while declining to consider the implications of the other case before it beyond California. This is a simplistic view of that case. This second case that year was Hollingsworth v Perry, a case which originated as Perry v Schwarzenegger, the culmination of a challenge to Proposition 8, the 2008 ballot initiative which had added to the California constitution the clause, “Only marriage between a man and a woman is valid or recognized in California”. In August 2010, US District Court Judge Vaughn Walker became the first of many federal judges to find a ban on same-sex marriage to contravene the US constitution. The state of California accepted the court’s ruling, and the appeal was taken up by those who had campaigned for Proposition 8. The Supreme Court that they did not have standing to do so, i.e. they did not have a direct stake in the outcome. It remained a matter for an organ of the state to defend a state law. Rather than being a formula drafted to dodge addressing a hot-button issue too soon, it would have been more questionable had they decided to consider the case. In 1996, the court came to a similar conclusion in Arizonans for Official English v Arizona, and the court should adhere to its precedents unless there are clear and compelling reasons to revisit a previous ruling.
Windsor ruled on Section 3 of DOMA, as this was the only question before it in that case. Writing the opinion of the court, Justice Anthony Kennedy held in clear and eloquent terms that the provision was unconstitutional. He wrote with an understanding of the change in attitudes we are witnessing, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage … Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community”. After acknowledging the many harms of such a ban on recognition, including to the children of same-sex couples, Kennedy concluded “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
While Justice Kennedy did spend a considerable portion of the opinion defending the right of the states against the federal government in relation to marriage, this was in support of New York in including same-sex couples. Citing Loving v. Virginia (the 1967 case which ended state bans on interracial marriage), he wrote “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons”.
Following this judgment, many cases proceeded in federal district courts challenging state bans. The first judgment was in December 2013 in Utah, where Judge Robert Shelby cited not only the opinion of Kennedy in Windsor, but also the dissenting opinion of Justice Antonin Scalia, who predicted that it would be a very small step from striking down the federal provisions in DOMA to striking down the bans in the states. Ten other district court judges came to the same conclusion when considering state bans across the country, ruling each of them unconstitutional; in September, Judge Martin Feldman in Louisiana became the first to write a court opinion upholding such a ban.
While some of these decisions applied with brief effect, most of them were stayed pending further appeal, so marriage has not been extended in these states (Pennsylvania being an exception, where the state accepted the opinion of the district court).
The Circuit Court Appeals have issued opinions in the Tenth Circuit (cases from Utah and Oklahoma), in the Fourth Circuit (from Virginia), and in the Seventh Circuit (cases from Wisconsin and Indiana), and in all cases upholding decisions that state bans are unconstitutional. Crucially, in all these cases, officials from the state are defending the ban, distinguishing them from the situation in California.
The Supreme Court may now decide to take any one or all of these cases. If they choose not to hear those cases this term, then the circuit court decisions will stand, and marriage will be extended in those states, and nearly immediately in other states in those districts. However, the supreme court may wish to wait until there is a circuit split, i.e. when there are conflicting interpretations of the constitution from different circuit courts. It remains possible that appeals in other circuits will find in favour of the constitutionality of state bans; this seems quite likely to be the outcome in the Sixth Circuit, where Judge Jeffrey Sutton was quite skeptical of the merits of the constitutional case for equal marriage at oral argument in cases from Michigan, Kentucky, Tennessee and Ohio. If this occurs, it is almost certain that they will be heard this year.
While those of us following the developments will wait eagerly to hear from the court today, I wouldn’t be holding my breath. In 2013, I tuned in on a weekly basis to whether they would take the Perry case, and which DOMA case they would consider; it was not until 7 December that this information was revealed.
Which still means that before Christmas, we should expect to know of a date in the spring when the Supreme Court will hear cases relating to the constitutionality of bans across the whole United States, with an opinion in June. I will of course return to this, to outline in clear terms why I believe they both should and will find that there is a constitutional right for couples of the same sex to marry, throughout the United States.
The Republican Party Platform remains as virulent as ever, if not stronger still, in its opposition to allowing gay or lesbian couples to marry. To give context, I have quoted these sections in full at the end of this piece.
The platform attacks the judiciary and the president for their actions, and affirms the party’s commitment to an amendment to the US Constitution which would define marriage as between a man and a woman, thereby overturning laws in six states which currently allow equal marriage. It also refers to social experimentation, a reference to the repeal of Don’t Ask Don’t Tell, allowing gay soldiers to serve openly. These sections were effectively written by Tony Perkins, president of the Family Research Council. The most the disappointed Log Cabin Republicans could secure was the line, “We embrace the principle that all Americans should be treated with respect and dignity”, which means little in the context of the previous passage.
Kris Kobach, Kansas Secretary of State and an advisor to Gov. Mitt Romney on immigration, defended these sections by comparing it to government regulation of behaviour like drugs and polygamy.
This is not just a party which is not yet on board, whose leaders are still evolving, where members have different points of view. It is one whose default position is organised opposition at every level to difference of opinion on the question. Gov. Mitt Romney, who in 1994 claimed to better than Ted Kennedy on gay rights, signed the pledge to support such a Federal Marriage Amendment from the National Organization for Marriage
And yet, in New York, New Hampshire and Washington, equal marriage exists in these states because of the support of certain Republican legislators. The party is not absolute either in its position. The Respect for Marriage Act, has one Republican sponsor, Ileana Ros-Lehtinen of Florida. And there are two groups of gay members of the Republican Party, the Log Cabin Republicans, founded in 1977, and GOProud, founded in 2009.
The Log Cabins put a much greater emphasis on equality for LGBT people than GOProud do. The former lists “Protecting LGBT families” and “Freedom to Marry”, where GOProud make no direct reference in their headline points in their ‘What We Believe’. The Log Cabins refused to endorse President George H. W. Bush in 1992 or President George W. Bush in 2004. They have yet to make an endorsement this year. They played a part in the repeal of Don’t Ask Don’t Tell, suing the US in a federal lawsuit.
GOProud could crudely be described as Tea Party response to the Log Cabins. They proven themselves much more likely to emphasise issues other than rights for gay people in their endorsements. In the primary for the California Senate in 2010, they endorsed Carly Fiorina, who had supported Proposition 8 banning same-sex marriage in the state, as against Tom Campbell, who had penned a piece calling for a No vote in that ballot, and who was promoted by the libertarian magazine Reason, so no fan of big government. They have already endorsed Mitt Romney.
I think the Republican Party is definitely better for having the Log Cabin Republicans within it. They serve as a touching point for the still small but growing number of prominent Republicans who are speaking out for equality, such as Vice President Dick Cheney, now out former RNC Chair Ken Mehlman, Colin Powell, Bush Solicitor-General Ted Olson, Mayor of San Diego Jerry Sanders. With the new group, Young Conservatives for the Freedom to Marry, they took out ads leading up to this week’s Republican National Convention, and they are adding to the conversation within the Republican Party. I’m not so sure I could say the same of the GOProud, who effectively send the message that while questions of marriage are worth talking about, taxes will always trump protections for lesbian, gay, bisexual or transgender people.
Republicans in favour of equality are definitely worth supporting. American Unity was formed earlier this year by a Republican donor with a gay son, and is funding candidates it believes worthy of support.
Because I would like to support the Republican Party (from afar in my case, of course). But I can’t. It is an unreasonable compact to ask someone to make, to support a party that will denigrate their fundamental personal relationships, prey on unfounded concerns, because they will improve people’s financial lives. It is a compact that some rich an well connected gay people can live with; whether equal marriage is five or fifteen years away for them, they don’t suffer or feel the social and economic consequences of so many gay people because of this legal inequality. And I don’t say this even as one who thinks a party’s position on gay rights should be the determining factor in whether to vote for or join a party, or I would not be in Fine Gael.
As with the Democratic Party, the Republican Party is and always has been a coalition. Within the Republican Party, these are crudely characterised as being between the fiscal hawks, religious conservatives and military hawks. What this misses is how the party targets the fears of poorer voters on social issues through a process of misdirection. Where the Republicans stand on gay rights resonates most with me because I’m gay. But there is more that is wrong with them. Take for example their very poor track record on immigration, as seen in recent laws in Arizona and Alabama. Rather than focus on the benefit of immigrants brining diverse skills and ideas to a community, they spin a protectionist story that has not helped these states economically. This year’s platform endorses these measures, a stark contrast from their 1960 platform when Richard Nixon ran for the first time, which for an increase in immigration.
The Republicans could have been a party that would make a strong moral and efficacious argument for the market and individual liberty. There are elected representatives and activists who do hold firm to these values. There are many with a view miles apart. But perhaps worse are those who assume a veil of prejudice because it is politically convenient.
Not that there is no hope with the Republican Party. On the question of equality for gay people, it does take a long view. Former Congressman Jim Kolbe, who was outed as gay while in office, believes that this is the last time the Republican platform will take these anti-gay positions. He could be right. If either Maine or Washington vote in favour of equal marriage at the polls in November, they will become the first state to do so by popular vote. That will change things, making it clear that there are votes to be lost. Perhaps a candidate like Gov. Mitch Daniels could take a stance similar to that of Barack Obama in 2008, when he stated that he was against same-sex marriage, but would vote No to Proposition 8 in California. But it’s a lot to expect.
I had a letter published in today’s Irish Times:
A chara, – Maolsheachlann Ó Ceallaigh writes (July 20th) that there’s surely a reason that most marriages throughout history have been between a man and a woman. There is. Most people are heterosexual. That this is true of the majority of people is not a good enough reason to deny what will always be a small minority of couples a chance to make the same commitment to each other.
In any of the 11 countries and six US states that now allow all couples to marry, naturally marriages between a man and a woman remain the norm, and are unaffected in their marriages by the change. How could allowing more people commit to each other send anything but a positive message about the value of marriage?
Allowing gay and lesbian couples to marry will enhance their comfort and security, it will make gay children and teenagers growing up in Ireland feel more included in society; it will provide constitutional support as well to children being raised by gay couples, and it will give peace of mind to the parents and wider family of gay people. With all this, anyone opposed should really feel obliged to provide more than a semantic objection. – Is mise,
Bray, Co Wicklow.
It is great news that President Barack Obama again holds the position he held in 1996, saying, “It is important for me to go ahead and affirm that I think same-sex couples should be able to get married” (with video here). Having publicly opposed equality in the intervening years, it is a major statement that he joins Presidents Jimmy Carter and Bill Clinton on the side of equality. Whether or not this was prompted by Vice President Joe Biden’s comments on Sunday, he is stating what most presume he believed, but it makes a difference that he sees it politically possible to do so.
With national opinion polls showing majorities in favour of equal marriage, there was no reason left for him to pretend not be on the right side of history on this question. Most imagined that a year or two into his second term, that he would announce that his position had finally evolved to support equality for gay and lesbian families. But he could reasonably have been accused of political cowardice; this way, he enters his second term clear on this policy.
Chris Cilizza in the Washington Post has analysed the political implications, predicting that there will be some downside for him on this. I’d broadly disagree. I think most Americans for whom opposition to equality in marriage is a salient issue would already be voting against Obama. He has made a commitment to equality for gay people part of his first term, from not defending the Defense of Marriage Act to his part in the end of Don’t Act Don’t Tell in the military. Some may point to polls against equality in swing states; what matters though, is for how many wing voters in these states is this a swing issue. Ultimately, no one should have been in any fundamental doubt about where he was on the spectrum.
For politically cynical among the Democrats, this will help his funding, bring out some voters, and stop others from who voted for him in 2008 casting votes instead for the Libertarian, Green or Justice Party candidates. But it will also force Mitt Romney to talk about this issue, which he really doesn’t want to do, but has signed a National Organization for Marriage pledge to support a Federal Marriage Amendment, banning same-sex marriage in all 50 states. I think the advantage in this regard would have been greater still had Obama announced this during the primaries, while Rick Santorum would have been there do highlight the religious fundamentalist wing of the Republican Party. On the whole, I think the political implications of this are marginal, though Obama may lose North Carolina.
Someone remarked to me yesterday evening that Obama in 2008 will presumably be the last time a Democratic candidate for president to be publicly opposed to allowing gay couples to marry. Could we see 2016 as the equivalent election for Republicans? Given the strong trend which is only gathering momentum, it wouldn’t surprise me, though I would certainly say so in the case of 2020.
Again, back to Barack Obama last night, this is indeed great news. This is not just about the electoral cycle. It is about every gay person in the United States, particularly those in difficult situations because of their sexuality, who knows that the president is a clear ally, finally the fierce advocate he promised he would be. And this will change minds. There are people till yesterday who could say to themselves that domestic/civil unions/partnerships must be all right, as it was the position of even Barack Obama. Now they will have to think again. This will change culture, which is just as important as changes in the law, the one complementing the other. The United States is a good few steps away now from achieving proper equality for all its gay, lesbian, bisexual or transgender citizens. But with POTUS on board, it has moved a major step in that direction.
I was delighted of course that today the Fine Gael Ard Fheis supported the motion, “That this Ard Fheis calls on the Government to ensure that the Constitutional Convention prioritises an analysis of the proposals for same-sex marriage in Ireland”, proposed by Mark O’Meara for Portmarnock/Baldoyle Branch and Gen. Richard Mulcahy YFG, supported by DCU YFG. Unfortunately, as I was helping the management of the Executive elections, I was not myself at the debate, but I know that there is real enthusiasm in parts of the party on this, particularly in Young Fine Gael.
This question has progressed remarkably quickly in recent years here in and many other countries, and I am quite optimistic that this pace will continue. It is firmly now in the mainstream of politics. It could be the clearest and simplest reform of the Constitutional Convention. I think we have good reason then to hope for equality between all couples within this term of government, after a campaign with all-party support, which I do believe can be convincingly won. It will need a good, strong, confident campaign, and I’m looking forward to it.