I Remain Hopeful…

Even if individual state DOMAs (the federal DOMA is still problematic) are held constitutional based on the so-called “Public Policy“ exemptions, they can still be struck down because they violate the Due Process and Equal Protection clauses of the US Constitution.

As marriages are considered contractual agreements and not the result of court proceedings (such as adoption — which clearly fall within the scope of the Full Faith and Credit Clause), then the best approach to overturning DOMA would be to challenge it on Due Process and Equal Protection grounds.

The decision in Loving -v- Virginia, in which the US Supreme Court overturned interracial marriage bans in various states, was based on the aforementioned protections guaranteed in the US Constitution, the Fourteenth Amendment, and not on the Full Faith and Credit Clause.

I think that approach would be best, and it could lead to striking down all other existing laws that discriminate against people based on their sexual orientation.

By the way, in Lawrence -v- Texas, this could have already been accomplished if the court ruling, which struck down the sodomy laws across the US, was based solely on a strict interpretation of the Fourteenth Amendment and not on some convoluted reading of the ambiguous “Liberty Clause“ of same amendment which gave the court wiggle-room on not expanding the rights of homosexuals to be on par with those of heterosexuals in all things — without exception. Although, there could have been unintended consequences if Justice O’Connor would have prevailed in her argument that it was an Equal Protection case . Apparently, she was still trying to justify her vote in upholding the sodomy laws earlier in Bower -v- Hardwick.

If O’Connor’s argument would have won over the court we still could have sodomy laws (as long as it applied equally to both heterosexuals and homosexuals) and, ironically, forced recognition of same-sex marriage in all fifty states. What a legal nightmare that would have been. For example: you could be legally married in Texas as a same-sex couple but you would not be able to consummate the marriage without breaking the state law which could still outlaw sodomy (as long as it applied to both heterosexuals and homosexuals) — leaving, of course, homosexuals with no physical expression to their intimate relationships at all.

Both fortunately and unfortunately, because the court limited the ruling to just the sodomy statues and then declared that those sodomy laws (as regards to consenting adults) were unconstitutional, and not in just their application to a certain group or groups, then that still left open to constitutional review all other laws that discriminate against homosexuals such as in Housing and Job Discrimination, DADT, DOMA, and a host of others equal protection arguments.

Now, we need a concise and final determination from SCOTUS that asserts that all Americans, regardless of Religion, Gender, Political Affiliation, Nationality and Sexual Orientation, etc., are entitled to the same, unabridged, constitutional guarantees and protections by the same degree and equal application of laws that pertain to all citizens of the United States of America — without exception.

I believe our day will come. Common human decency has a way of waking up from its sleep of complacency and doing the right thing when you least expect it. In spite of everything, I have faith in what is still good in people — as strained as it is from time to time.

…So, I remain hopeful.

© Bud Evans

http://rainfish2000.blogspot.com

GET THE GOVERNMENT OUT OF THE MARRIAGE BUSINESS NOW! If religious institutions want to have that word for themselves, LET THEM KEEP IT! Make civil unions available for straight and gay couples. Get rid of civil Marriage!

Steve, I think you are too cautious. Courts like to make narrow decisions. But justices also are aware of changing sentiments in the populace. In any case, I don’t think a loss in the Supreme Court would be a catastrophe. Decisions are overturned when the time is right. I wish Hardwick v. Bowers had been decided correctly in 1986, but the Court came to realize that a bad error had been made and revisited the question in 2003, overturning that horrible opinion in Lawrence. So even if the Court would rule against us, that would not be the end of the matter. We would continue on the state-by-state strategy until the Court realized that they had erred and moved to correct themselves. As to whether such a ruling would be similar to Roe v. Wade strikes me as irrelevant. Our rights will always be controversial to those who hate us, whether we win them through the ballot or the legislature or the courts. In Massachusetts, the Goodridge decision has become noncontroversial except for the diehards who hate us and who would hate us even if our right to marry there came through the legislature or a referendum.

We should convince the couples to drop the litigation.

Theodore Olsen? When did that right winger become a friend? Watch out for this one.

Yes, Jay, Kennedy is an eloquent writer, including in Lawrence and Romer. But both opinions hint at division among the justices who joined them. In both, Kennedy carefully avoided establishing a general approach that would strongly protect gay rights in other cases. In Lawrence, he explicitly emphasized at least twice that the court was not deciding whether government had to officially recognize same-sex couples. Those opinions signal great cautious and reluctance to go much further. Indeed, the Court had a perfect opportunity after Lawrence to strike down Florida’s ban on gay adoption but refused to take the case. The current court is fairly controversy-averse. Plus, we have no idea what position the Obama Administration would take, and the view of the Administration would carry some weight. Barack Obama, remember, formally opposes same-sex marriage. I would, frankly, be surprised to see the Administration support the challenge. Elena Kagan, his solicitor general, has already said that she does not believe the constitution protects any right of same-sex marriage. Winning this kind of challenge would be much harder than I think people generally realize. I’ve been plenty critical of ACLU and Lambda at times, but I think their assessment is right on this one.

BTW, Scalia’s comment in his dissent to Lawrence v. Texas that the decision opened the way to same-sex marriage was meant scathingly and sarcastically. Ironically, however, it has been cited seriously in several of the decisions by state courts that have legalized same-sex marriage. So I think Scalia has been hoist on his own petard.

Can we block this challenge? Convince the court to drop it before they take it up?