Rachel Maddow’s nearly giddy segment on msnbc last night noted that when the full effect of yesterday’s Supreme Court rejection of appeals against marriage equality reaches the states, the roster will equal thirty states. And she looked forward to decisions expected from the Sixth and Ninth.
Today, the hammer dropped in the Ninth; Dale Carpenter quips:
I haven’t read the Ninth Circuit opinion yet. I have to teach now, so it would be nice if the courts would stop issuing gay-marriage decisions for an hour or so.
The estimable Lyle Denniston of SCOTUSblog explains what happened in the Ninth:
The Ninth Circuit’s ruling was made up of three parts.
First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples. Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s Due Process Clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berzon, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender.
The third member, Circuit Judge Ronald M. Gould, joined only the main opinion on the equal protection principle.
This ruling was perhaps the least surprising among four federal courts of appeals decisions striking down state prohibitions on same-sex couples marrying, and already-married couples gaining official state recognition of those unions, performed elsewhere.
Meanwhile, Stephen Koranda reported today on intransigence in Kansas, as the Sunflower State attempts to simply ignore the fact that they just lost the fight, and Walter Dellinger joined Melissa Block on All Things Considered to wax historical about Loving v. Virginia, the Supreme Court decision that put an end to state bans against interracial marriage. The former Solicitor General noted similarities and differences between 1967 and 2014.
What is interesting is that at the time the Court decided Brown versus the Board of Education in 1954, ending the system of Jim Crow public education, the majority of states banned interracial marriage; and, similar to what the Court has done with gay marriage the Court then was unwilling to take on the question of interracial marriage when it first came before the Court two years after Brown, while it was struggling over the implementation of Brown. So it was only thirteen years after the Brown decision that the Court was willing in 1967 to take on interracial marriage in the Loving case.
This is one of the things about the Supreme Court that always seems puzzling. Acknowledging the real politics of the Court, the principle, at least, is that it should be apolitical, and specifically judicial. Yet the Supreme Court’s management of human rights issues often seems fundamentally political:
What is interesting is that at the time the Court decided Brown v. Board of Education in 1954, ending the system of Jim Crow public education, the majority of states banned interracial marriage; and, similar to what the Court has done with gay marriage the Court then was unwilling to take on the question of interracial marriage when it first came before the Court two years after Brown, while it was struggling over the implementation of Brown. So it was only thirteen years after the Brown decision that the Court was willing in 1967 to take on interracial marriage in the Loving case.
† † †
They had wanted to delay it until the issue of Brown and school desegregation had run its course, and by 1967 we had the passage of the ’64 Civil Rights Act and the ’65 Voting Rights Act. And we were down to sixteen states banning interracial marriage and then the Court was willing to act, even though the outcome legally was inevitable after the Brown decision a dozen years earlier. I think you see the same pattern here, that really the gay marriage case was decided as a matter of logic a doAzen years ago in 2003 when the Supreme Court in Lawrence against Texas struck down the laws that made homosexual acts a crime. The Court took that on when thirteen states still criminalized that activity. But they were unwilling to take on gay marriage even as recently as 2013, when more than forty states still banned gay marriage. But now it’s moving so fast that by the time the Supreme Court revisits the issue of gay marriage you will have a majority of states and a clear majority of people in the United States living in states that permit gay marriage.
At some point, Americans are going to have to wrestle with this question of why we should so politely phase out injustice in order to minimize the unease of the unjust. The Rubin pathwayα really is the only viable route that ever existed; this is part of what Dellinger meant when he said gay marriage was decided as a matter of logic by the Lawrence decision. With the rest of the world as it is, a married homosexual couple would eventually turn up in need of their appropriate rights under the Constitution. Remember how many countries have recognized gay marriage (seventeen, including Canada, and gay marriage exists in Mexico Cityβ).
The weird thing is that traditionalists seem to have brought this on themselves. Many who grew up during the eighties made it through their childhoods without ever hearing the word “Stonewall” applied to anything but a Confederate general. The HIV crisis, complete with signature Reagan styling, really did seem to dominate a generation’s awareness of homosexuals. And then one day in the early nineties, some embittered Christiansγ started asking voters to persecute homosexuals. It was almost as if they had raised a demon solely for the purpose of slaying it, but failed to put it back down. This is the Gay Fray, the arc of politics and jurisprudence that has bent history toward this parade of justice.
And perhaps the moral of the story here is that while they should be careful what they wish for, the rest of us ought to be cautious about whatever demon they raise next. Judge William Pryor of the Eleventh Circuit, appointed by President George W. Bush, once argued in an amicus brief presented to the Supreme Court—in Lawrence v. Garner, no less—that the legalization of homosexual intercourse and contact “must logically extend to activities like prostitution, adultery, necrophilia, possession of child pornography, and even incest and pedophilia”. What is significant there is that it was a 2003 reiteration of what we heard in 1992, when homophobia advocates compared homosexuality to pedophilia on the ballot, and various other acts like bestiality and necrophilia in campaign literature. Now, it is one thing for religious zealots to forget such basics, but the idea of a federal judge who sees consent as irrelevant to sexual relations is something of a nightmare.
So what is next? Incest? Polygamy? Bestiality? Whatever they choose, watch them cause its legalization.δ
Or maybe it really is all about closeteering; these years later, it is still difficult to explain the astounding voter guide advocacy from one Phillip Ramsdell, which was essentially a list of kinky sexual behaviors, accusing homosexuals of perversion. To the one, there was nothing on the list heterosexuals cannot or do not do. To the other, who knows, maybe he gave some of his pious allies some tips to spice up their romantic life.
Which would fit nicely alongside the number of prominent homophobes fallen from grace for their gayness. While it often seems a classic rupture resulting from the pressures of the return of the repressed, perhaps we should leave open the possibility that they really, really, really want to be gay, or get on their sisters, or maybe even hum a goat, but they need everyone else to convince them that it’s okay.
Not the goat. Really.
And for Heaven’s sake, stay the hell off your siblings.
Oh, right. And diddling the dead is a clear sign that you require immediate psychiatric treatment.
But, yeah. You closet cases puffing up your homophobia in order to pass? It’s okay, you can come out, now. And, trust me, the party will be fabulous.
α Briefly reviewed:
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.
β An old joke chiding Armando Martinez, who denounced the 2009 legislation for having “given Mexicans the most bitter Christmas”, and lamenting that the legislature was “permitting adoption and in one stroke of the pen have erased the term ‘mother’ and ‘father'”:
And, really, I thought it was the gays who were supposed to be melodramatic to make you cringe. Come on, Señor Martinez. Didn’t you ever see Greg Evigan and Paul Reiser in My Two Dads? Quite obviously, gay marriage isn’t the worst thing in the world for a child.
Really. The eighties did actually happen.
γ The Oregon Citizens’ Alliance turned to homophobia after becoming disillusioned with their lack of progress trying to ban abortion. After finding some local success, they took their ballot measure statewide in 1992, asking voters to instruct the state to persecute homosexuals. Their mission failed that year, but allies won in Colorado only to see their efforts shredded in federal court. Over two decades later, the homophobic rhetoric has not evolved a whit; what has changed is that repetition of the question and concomitant argument have transformed the outlooks of many Americans, especially as the threat of persecution pushed more and more out of the closet and voters suddenly discovered just how close to home these questions struck.
δ Polygamy: A question of numbers, not equal protection, such as, Does, say, a second wife get half or a third out of the divorce? What if one needs two hands to count the spouses? Incest: A relatively straightforward question: Does the state have a prurient interest in restricting incestuous reproduction? A more complicated version: How about sibling anal? Bestiality, pedophilia, &c: Really? Consent has no meaning to y’all?
Maddow, Rachel. “‘Edie and Thea’ lead way to marriage equality, argle-bargle notwithstanding”. The Rachel Maddow Show. msnbc. 6 October 2014.
Carpenter, Dale. “Ninth Circuit strikes down same-sex marriage bans”. The Washington Post. 7 October 2014.
Denniston, Lyle. “Two more bans fall”. SCOTUSblog. 7 October 2014.
Koranda, Stephen. “Despite SCOTUS Decision, Kansas Holds On To Same-Sex Marriage Ban”. National Public Radio. 7 October 2014.
Block, Melissa. “Gay Marriage Ruling Evokes Memories Of Loving V. Virginia”. All Things Considered. 7 October 2014.
Pryor, William H., et al. “Brief of the States of Alabama, South Carolina, and Utah as Amici Curiae in Support of Respondent”. Lawrence v. Texas. 18 February 2003.