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Why marriage might return to the US Supreme Court and why this time it’s different

29 September, 2014 Leave a comment

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?

Supreme_Court_US_2010A 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.

US to recognise gay marriage in 13 states at a federal level

With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.

This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.

In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.

This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.

So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.

I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?

We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.

Could David Quinn learn from David Blankenhorn?

6 June, 2013 1 comment

Let’s be honest: The gay marriage debate is nearly over.

In the Los Angeles Times last week, David Blankenhorn, President of the Institute of American Values, opened with these words to write again about his personal journey. He was one of the witnesses who spoke in defence of Proposition 8 in its original court hearing in 2010, and a long-term leader of those who were against. Between his institute and where he places his emphasis in his arguments, such as on family stability and the effect of absent fathers, he brings his namesake to mind, David Quinn, Director of the Iona Institute.

Yet last year, David Blankenhorn wrote in the New York Times, ‘How My View on Gay Marriage Changed’. He did not depart from his core understanding of marriage as ‘the planet’s only institution whose core purpose is to unite the biological, social and legal components of parenthood into one lasting bond’. But the debate on gay marriage did not pan out as he initially expected, nor did it have the effect of strengthening an understanding of heterosexual marriage. In that context, comity matters, he said,

Sticking to one’s position no matter what can be a virtue. But bending the knee a bit, in the name of comity, is not always the same as weakness. As I look at what our society needs most today, I have no stomach for what we often too glibly call “culture wars.” Especially on this issue, I’m more interested in conciliation than in further fighting.

As he came to see it, maintaining his opposition did not help the conversation he believed was most important about marriage, and began to realise that these discussions can perhaps best take place while accepting that gay couples are living together and raising children,

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Redefining marriage

11 April, 2011 2 comments

I will pay Richard Waghorne credit for taking the time to respond to so many of the responses, my own included, to his column in the Irish Daily Mail on Tuesday against same-sex marriage (though as a pointer for his relatively new blog, it is blogging etiquette to link back to articles quoted).

There is a recurring theme in his responses which I would like to respond further to. He takes any admission of a benefit of marriage to children as a concession that it has no further primary purpose, and that any other purpose to marriage can only undermine the benefit to children.

I would put the case that with this it is in fact Richard who is attempting to redefine marriage by presenting a far narrower definition than we are commonly accustomed to thinking of. Outside of this particular debate, it is not asserted that marriage exists solely for the benefit of children. Had that been the case, one could imagine a scenario where none of the legal recognition for marriage kicked in until the birth of a couple’s first child.

Richard addressed the question of infertile couples (in rebuttal 3). One of his arguments was that it would be intrusive, suggesting that if there were an non-intrusive way of determining fertility, there would be less of an issue in denying such couples the right to marry. Read more…

Perry v. Schwarzenegger – Gay marriage rights on trial

Today in California, one of the most significant debate on whether gay and lesbian couples should have equal rights to marriage is coming to a conclusion. This is the federal case of Perry v. Schwarzenegger, which is at the stage of closing statements from both teams, which is hoping to overturn Proposition 8, which passed an amendment to the Californian constitution banning gays and lesbians from marrying under the Californian Constitution. This was passed on 4 November 2008, the same date Barack Obama was elected president.

When I first heard of the case last summer was being taken at a federal level, I was a little wary. I felt that given this would eventually be appealed to the Supreme Court, and that given the delicate balance of the Supreme Court, it was likely that Anthony Kennedy, considered the swing voter, would ensure at least 5-4 against the plaintiffs, and set back the case of marriage equality for a decade or so. Many of the groups who had campaigned against Prop 8 felt similarly.

Now, after the close of hearings,  I’m more optimistic about the benefits of the case. It made news because it brought to together the conservative Ted Olson and the liberal David Boies, who had been on opposing sides in Bush v. Gore in 2000, jointly representing the plaintiffs, two couples who had failed to get married during the period where it was possible for them in 2008. They were backed by the newly formed American Foundation for Equal Rights, which had on its board John Podesta, former Clinton White Chief of Staff and President of the Center for American Progress, and Robert Levy, President of the Cato Institute, one of the leading libertarian think-tanks.

Considering the proceedings of the court to date, I would not be surprised if the case was ruled in the plaintiffs’ favour, given the weak evidence and reliance on research from anti-gay activists like George Rekers who were over-compensating for their own repressed homosexuality. But even if it were to fail, and to fail again on appeal to the Ninth Circuit, good will come from the nature of the evidence presented.

If it does fail, it will probably not be opposition’s case that allowing any couple to marry would undermine the state’s interest in encouraging marriage for the benefit of children, or that the institution of marriage in society would in some way be weakened. If it fails, it will most likely be because of a judgement that as the people believed there was a rational basis for denying marriage rights, the court is not in a position to overrule them.

The benefits of the case, whatever the outcome, is threefold. On the one hand, it has provided the most thorough setting in which the arguments of both sides have been scrutinized, and the fault lines and weaknesses highlighted. Whatever the next forum for this debate, it now must take place at a more informed level. Secondly, the symbolic effect of the legal team and its backers matters. The right of gay couples to marry is being seen less and less as a matter of left against right, of liberals against conservatives. For Levy and Podesta to co-author an op-ed in the “Marriage equality for all couples”, will make more American start to question their preconceptions on the issue. As would Ted Olson article in Newsweek earlier this years, “The conservative case for gay marriage”. Finally, the lives of the four plaintiffs will seem familiar in their ordinariness to many: Kris Perry and Sandy Stier together ten years and raising four boys, Paul Katami and Jeff Zarrillo nine years, all in very conventional careers.

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