The Picture: Marriage Equality Mix

Contemplation of Justice

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

David A. Strauss

There is a lot going on. Or maybe not. Where once the idea was that courts should stay out of things and let “democracy” pick and choose who gets what human and constitutional rights in the United States, many of those advocates are looking to the Supreme Court of the United States to cram the gays back into the closet. With Justice Ginsburg suggesting last month that the Supreme Court might get involved if the lower courts make a sufficient mess of things, and the Fifteenth Judicial District Court of Louisiana holding the line in terms of state courts, one might wonder about the fervor Robert Barnes noted last week for the Washington Post:

The 10th edition of the Supreme Court under Chief Justice John G. Roberts Jr. begins work Monday with the prospect of a monumental ruling for gay rights that could serve as a surprising legacy of an otherwise increasingly conservative court.

Whether the justices will decide that the Constitution protects the right of same-sex couples to marry dominates expectations of the coming term; such a ruling would impart landmark status on a docket that so far lacks a blockbuster case.

And some say it would be a defining moment for a closely divided court that bears the chief justice’s name but is most heavily influenced by the justice in the middle: Anthony M. Kennedy, who has written the court’s most important decisions affording protection to gay Americans.

“If the court establishes a right to same-sex marriage . . . [it] will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” said David A. Strauss, a constitutional-law scholar at the University of Chicago.

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

Something about blockbusters, to be certain; one would hope we have enough worked out about our society that we should not necessarily be rushing for a marquée show every year. That is to say, there is plenty wrong with society, but do we really have so many fundamental civil rights questions coming to the fore? And if so, well, what the hell is wrong with Americans that we have not yet figured out how some of these very basic concepts work?

Reading through the noise, we might pause to recall questions of purpose and audience. To whom is Mr. Barnes addressing his words? What is the purpose of communicating this information? In fairness, we cannot presume that the average reader of The Washington Post who actually lives in or near the District actually follows the political news so closely as, say, a reader from the west coast who most assuredly is not checking in for the sports page.

In the post-Windsor landscape, supremacism is the outlier.

With the exception of Robicheaux v. Caldwell, a federal decision out of New Orleans, marriage equality has enjoyed the relatively steady progress of the courts mopping up the mess made by a bunch of people who are still angry at having lost. And, indeed, Judge Martin L. C. Feldman, who penned the atrocious Order and Reasons in the Robicheaux debacle, is part of this. One might certainly find some disappointment amid the craven absurdity of Feldman’s apparent hatred of adoption and preference for deadbeat (or plain dead) parents, but it seems nearly impossible that one should have expected a clean run through the courts. That would be extraordinary.

Hence the decision handed down in the Parish of Lafayette, by Judge Edward D. Rubin, all of twenty days later, takes on even greater weight. Starting with an adoption consideration invoking Article IV of the United States Constitution, Judge Rubin walked the seemingly simple issue through its nasty tangle, and did so rather concisely, recognizing a California marriage, thereby removing the last obstacle to an intrafamily adoption in Louisiana, and, by the way, consequentially speaking, since they’re married any gay couple in Louisiana can be married, and it really is an undue burden to send them to another state to get married, so yeah, the whole Louisiana gay marriage ban thing is off.

The point is not to fault Barnes. Indeed, there is some considerable murmur about the idea of the Court weighing in to settle the issue. But even setting aside the question of why any given docket needs a blockbuster, it is also fair to ask whether this issue has any such need. Marriage equality does not at this time need another Supreme Court blockbuster. Not only is there a decision coming in the Sixth, there is also the fact that some feat of hitherto inconceivable and unconceived juristics is required to turn the tide on marriage equality. While it is no time for complacency among equality advocates, neither should they wrench themselves to tatters.

It’s over. The paperwork is in, and what remains, while still a considerable task, is formally known as cleanup.

All of the components have arrived, and circle in holding patterns while the last stragglers pray for the hand of God to wipe away the tarmac. It just seems like an awful lot of ceremony, asking the Supreme Court to clear the deck. And, besides, it would make Scalia grumpy.

What? Priorities, you know.

Besides, the most likely blockbuster scenario would have something to do with women and health care, and, well, come on, “women’s issues” always get bumped to standby.

No, really, think about it: Homosexuals just cut the line in front of women. To the one, yeah, sorry ’bout that. To the other, it seems pretty clear they weren’t actually aiming for that one. You know, it’s all symptomatic of a larger malady.

There are also some voting rights issues that really are important. Maybe it isn’t an expectation of a blockbuster so much as a deep desire for a fabulous blockbuster. Fetuses in glitter g-strings? No. Please, no. Nonagenarian voters celebrating the restoration of their rights by shaking pasties? How about no macro lenses? I mean … know what I mean?

Everybody loves a parade.

But the truth of the matter is that at this point, it would be a bad sign for marriage equality if the Supreme Court decided to get involved this year. For advocates, there is no heat here save impatience.

But here is a question of the buzz; in August, Dale Carpenter reflected on oral arguments out of the Sixth Circuit attending marriage equality cases from four states:

I think the Sixth Circuit is likely to reject the claims for same-sex marriage and marriage recognition in a split decision. Most media accounts (see New York Times story here and the Post account here) also characterize the Court’s decision as a toss-up leaning toward rejection of the constitutional arguments for same-sex marriage, with Judge Daughtrey a very likely vote to strike down bans on same-sex marriage, Judge Cook a likely vote to uphold the bans, and Judge Sutton sitting in the middle but mostly critical of the claims. If anything, I’m a bit more confident that the Sixth Circuit will reject the claims than some observers seem to expect.

That would seem a vital caveat, but we might both call and raise the stake: To what degree do other judicial decisions affect judges? In a case such as Feldman’s botched effort in Louisiana, the answer is severely, and quite clearly so, though not always as mechanical logic would suggest. But that grasping decision is perhaps exemplary even beyond its solitary existence; it shows just how much effort it takes trying to bend justice the wrong way. And then there is the insult of futility when a state judge simply follows logic and the law. A vital question: Is Article IV involved? And the answer is yes. For all Carpenter considers discrimination and, consequently, equal protection, he passes on the Article IV issue in Bourke v. Beshear, and this is the vector to keep an eye on; Judge Heyburn explicitly dodged Article IV.

But, yes, the Full Faith and Credit Clause is involved; this one is already over. And to that end, while Carpenter is certainly aware it is worth mentioning for the record that sometimes judges press the winning side because it is helpful to know that the larger legal framework is sound. But once Article IV is involved, marriage equality wins. For the Sixth to work around the Rubin path will require some pretty impressive juristics. And if that happens, we might get a fabulously gay Supreme Court blockbuster come spring or, perhaps, autumn next year.

Should that happen, well, at the very least we would get to see the Notorious R.B.G. leave her mark. One can only imagine her trying to walk a state’s attorney through the Article IV gateway.

There was that time when an attorney for the House Republicans argued in a brief to the Supreme Court that gay marriage should be illegal because heterosexuals “can produce unplanned and unintended offspring”. And, bearing Feldman’s clodhopping ruling in mind, we must remember that anything is possible. Who knows what any lawyer would come up with in an attempt to bat down Article IV. One Oklahoma lawmaker suggested earlier this year that legislators should consider outlawing all marriage in the Sooner State. You know, just to fend off gay marriage. Because, you know. Oklahoma! Family values! Something like that!

So, yes, there is the idea of Justice Ginsburg trying to compel a state’s attorney to start making sense. That would be amusing. But it would also be extraneous. The Rubin pathway is the only one left. It is also the only one that ever truly went anywhere. And it really is hard to see how Article IV loses. But we can rest assured it would be a morbidly entertaining argument.


The winning argument, from the Order and Reasons:

Defendants counter that the laws trigger rational basis review, which is satisfied by Louisiana’s legitimate interest in linking children with intact families formed by their biological parents, and by ensuring that fundamental social change occurs by social consensus through democratic processes.

(Boldface accent added)

When compared to living, present, attentive, contributing parents.

Barnes, Robert. “As Supreme Court term begins, prospect of a gay-marriage ruling looms large”. The Washington Post. 4 October 2014.

Bakst, Brian. “Ruth Bader Ginsburg: Watch 6th Circuit For SCOTUS’ Next Move On Gay Marriage”. The Huffington Post. 16 September 2014.

Rubin, Edward D. “Minute Entry Ruling”. Costanza v. Caldwell. 15th Judicial District Court, Parish of Lafayette. 22 September 2014.

Feldman, Martin L. C. “Order and Reasons”. Robicheaux v. Caldwell. United States District Court Eastern District of Louisiana. 3 September 2014.

Carpenter, Dale. “Some thoughts on the Sixth Circuit marriage cases”. The Washington Post. 7 August 2014.

Heyburn II, John G. “Memorandum Opinion”. Bourke v. Beshear. United States District Court Western District of Kentucky at Louisville. 12 February 2014.

Savage, David G. “Gay marriage opponents take unusual tack with Supreme Court”. Los Angeles Times. 26 January 2013.

“Oklahoma Lawmakers Consider Preventing All Marriage: Report”. The Huffington Post. 25 January 2014.

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