Required Reading: Equal Protection Edition

This is pretty much required reading. William N. Eskridge Jr., of Yale Law School, offers an opinion in favor of Amendment XIV recognition of same-sex marriage in Ohio. The middle of the article stands out:

Justice Anthony Kennedy said: “This definition has been with us for millennia. It’s very difficult for the court to say, oh well, we know better.” Justice Samuel Alito asked: “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

All of the justices and counsel addressing this point accepted the premise that no culture had ever recognized same-sex marriage. That premise is incorrect.

First- and second-century historians Suetonius and Tacitus (disapprovingly) documented official same-sex marriages in imperial Rome. Some modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece. So it is not right to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

The evidence is overwhelming for non-Western cultures. In their 1951 book “Patterns of Sexual Behavior,” anthropologists Clellan Ford and Frank Beach surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.” They were mainly referring to “berdache” marriages, in which a man would marry another man who performed domestic duties or a woman would marry a woman who worked outside the home. Researchers have demonstrated that a majority of Native American tribes (as well as many tribal people elsewhere in the world) have recognized such marriages at points in their histories.

Anthropologists have also documented the phenomena of “woman marriage” in African societies, in which a wealthy woman marries another woman and then secures her impregnation, thereby generating heirs. Anthropologist Denise O’Brien reports that such marriages have been recognized in more than 30 African cultures.

There are other examples (some more equivocal), but these show that there has been no universal definition of marriage that excludes same-sex couples.

To the one, it should be noted that Prof. Eskridge also authored an amicus brief in support of the Obergefell petitioners on the question of the Fourteenth. And while the interest of amici might be a bit thin, the brief still makes for excellent reading.

To the other, we should remember what is at stake: Ohio is trying to unmarry a dead man.

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Eskridge Jr., William N. “The 14th Amendment should cover same-sex marriage in Ohio”. The Washington Post. 19 June 2015.

Eskridge Jr., William N. and Ilya Shapiro. “Brief of Amici Curiae CATO Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners”. Supreme Court of the United States. 6 March 2015.

Christian Faith and Character in Tennessee (Double Down Devil Mix)

This is just strange:

A sign posted by a Knoxville church continues to raise eyebrows and spark both discussion and outrage after it was posted online.

The sign posted by Knoxville Baptist Tabernacle Church read “Remember Satan was the first to demand equal rights.” Many people posted the picture to the WATE 6 On Your Side Facebook and Twitter pages, starting a debate about what the sign really means.

The pastor says the purpose of the sign was to send a message about unity and spark conversation in the community. He says it wasn’t meant to offend anyone.

“Our sign referencing Satan demanding his equal rights to ascend into the heavens and be God was simply ‘I’ and all about that individual,” said Pastor Tony Greene. “It was not a statement against any one group in particular, you know what about the rights of the unborn babies, the rights of children, the rights of everyone?”

(Holloway)

There are a few things here, but let us, please, simply start with the obvious: Did he just turn that into a plea for equal rights?

About On Schedule

The marriage bans challenged in these cases impermissibly exclude lesbian and gay couples from the rights, responsibilities, and status of civil marriage. These facially discriminatory laws impose concrete harms on same-sex couples and send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted. The bans cannot be reconciled with the fundamental constitutional guarantee of “equal protection of the laws,” U.S. Const. Amend. XIV.

―Donald B. Verrilli, Jr.

Or perhaps simply an overview from Ryan J. Reilly of Huffington Post:

The Obama administration thinks the Supreme Court should rule that state bans on same-sex marriage are unconstitutional, according to a brief filed by Justice Department lawyers on Friday. The administration takes the position that those laws violate the equal protection clause of the Constitution.

The amicus brief urges the Supreme Court to find such bans “incompatible with the Constitution” because they “exclude a long-mistreated class of human beings from a legal and social status of tremendous import.”

The court will hear oral arguments in the case of Obergefell v. Hodges in April.

Honestly, the only surprise here is that now we need to figure out whence came the notion this one was going forward under DeBoer, the case out of Michigan.

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Verrilli Jr., Donald B. “Brief for the United States as Amicus Curiae Supporting Petitioners”. Obergefell v. Hodges. Supreme Court fo the United States. March, 2015.

Reilly, Ryan J. “Gay Marriage Bans Are Unconstitutional, DOJ Tells Supreme Court”. The Huffington Post. 6 March 2015.

A Throwback to the Future

Patience is one of the most challenging virtues. As marriage equality finds its home in state after state after various federal courts strike down exclusion laws passed amid political panic in the wake of Lawrence v. Texas, what seems a straightforward issue has observers on the edges of their seats.

Meanwhile, how about a throwback, just for nostalgia’s sake? You know, all of ten days.

That is to say, in the wake of the Supreme Court’s refusal to hear heterosupremacist appeals earlier this month, Steve Delchin, writing for the Sixth Circuit Appellate Blog maintained by the D.C. law firm Squire Patton Boggs, looked ahead to what is supposed to be a bated-breath decision coming from the Sixth Circuit sometime before winter arrives:

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved. But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional. Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments). All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path. We will continue to keep close watch.

Alaska, Losing

Perhaps the biggest mystery of the recent judicial avalanche in favor of marriage equality is the absence of Article IV in what are clearly Article IV cases. Consider Hamby v. Parnell, a case striking Alaska’s marriage ban.

Perhaps it is the lack of an Article IV claim, as opposed to Judge Heyburn’s decision in Kentucky that intentionally bypassed the Full Faith and Credit Clause of Article IV. Still, though, Judge Timothy M. Burgess, appointed to the District of Alaska by President George W. Bush, finds his way through to strike the ban according to Due Process and Equal Protection under Amendment XIV. Still, though, in a case in which four couples are demanding their marriages from other states be recognized in Alaska, it would seem Full Faith and Credit should be a glaring issue.

To take an example, my father has been married twice, once each to different women. In his first marriage, the couple lived in three different states and a foreign country over the years. They never had to remarry in any of those jurisdictions; the Washington state marriage was sufficient, an act and record of one state recognized in another. In his second marriage, the couple has lived in two states and spent an extended period in Mexico. They did not have to remarry in any other jurisdiction; their Oregon marriage sufficed for other states and, indeed, other countries. This, ultimately, is what is at stake. Perhaps Article IV won’t come into it until a state refuses another state’s marital record in order to force the couple to repeat the ceremony and pay out for licensing in the new state.

The bottom line, however, is that another state’s marriage ban has collapsed under constitutional weight. This much, at least, is hardly mysterious.

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Burgess, Timothy S. “Order”. Hamby v. Parnell. United States District Court for the District of Alaska. 12 October 2014.

Where the Tide Takes Us

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

―Supreme Court of the United States

This is not an unexpected outcome. Indeed, the blunt, unsigned order refusing Idaho’s request to stay the Ninth Circuit decision striking the state’s same-sex marriage ban is pretty much exactly expected. The only strange thing about it, really, is that the order exists at all.

The point arose last week when the Court refused to hear arguments from several states after Appeals courts struck their marriage bans. As Rachel Maddow explained to viewers:

So, there are nine Supreme Court justices. Do the math. If you want to win a case at the Supreme Court, you need five votes. You need five justices on your side. You need five votes to win a case.

But it only takes four votes for the Supreme Court to decide to take a case in the first place. So, we know there are four anti-gay marriage justices on the Supreme Court—Scalia, Roberts, Alito and Thomas. If they had wanted to hear one of these cases today, if they had wanted the chance to overturn one of those pro-gay marriage cases from the lower courts, those four justices had enough votes to take the case to do it.

I mean, the anti-gay marriage side could have taken one of those cases if they want to. So, why didn’t they?

Latta is an Article IV case. The thing is that no excuse a judge might invent to try to get around Amendment XIV, the Equal Protection Clause, marriage equality runs up against the Full Faith and Credit Clause of Article IV of the Constitution.

Given that the Supreme Court just said no to appeals in Article IV cases, one might wonder why Justice Kennedy thought to issue a stay and ask his colleagues to undertake another Article IV case.

Lyle Denniston brings us the answer:

Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower-court ruling that had nullified the ban on same-sex marriage there. The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order. Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it. Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

Certainly, it was a weak reason, but, you know, it is no big deal, right? Just making people wait for their civil rights in order to be nice to Idaho while they attempt to make an impossible argument.

Nonetheless, Idaho is go. And, you know, it was only a day. What’s another day after all these years?

Oh. Right. Obergefell. Which reminds, there is no news from the Sixth.

But there is news from North Carolina, where a District Court in Charlotte struck the Tar Heel State’s marriage ban according to Bostic v. Schaefer, a Fourth Circuit case the Supreme Court refused.

Additionally, Denniston explains the Ninth Circuit Memorandum issued Saturday, bringing a formal end to the moot Jackson v. Abercrombie in Hawai’i. It’s a happy ending.

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Supreme Court of the United States. “Order in Pending Case”. Otter v. Latta. 10 October 2014.

Maddow, Rachel. “‘Edie and Thea’ lead way to marriage equality, argle-bargle notwithstanding”. The Rachel Maddow Show. msnbc. 6 October 2014.

Denniston, Lyle. “No delay on Idaho same-sex marriages”. SCOTUSblog. 10 October 2014.

Cogburn, Max O. “Memorandum of Decision and Order”. General Synod of the United Church of Christ v. Resinger. United States District Court Western District of North Carolina Charlotte Division. 10 October 2014.

United States District Court for the District of Hawaii. “Memorandum”. Jackson v. Abercrombie and Bradley v. Abercrombie. 10 October 2014.

How It Goes: Recognition Edition

Last month, Emma Margolin undertook an effort to list the reasons why the Supreme Court was expected to take up marriage equality in the new term that began today. And, of course, something about today, because the msnbc reporter brings the news that we should add five states to the officially official marriage equality roster:

Marriage equality is coming to five more states – with six more on the way.

The Supreme Court on Monday rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin – all of which saw their bans fall in both federal district and appeals courts. The move immediately legalizes marriage equality in those five states, and will soon topple bans in six other states that make up the 4th, 7th, and 10th circuits. Those states include Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, bringing the total number of states where gay and lesbian couples can wed from 19 plus the District of Columbia to 30 – more than half the nation.

With a ruling expected sometime this fall, all eyes turn to the Sixth Circuit, where it is hard to imagine the court rejecting Full Faith and Credit.

SCOTUSblog checked in with the summary reflecting the sentiments coloring the headlines:

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership.

And so it goes. For now.

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Margolin, Emma. “Five signs the Supreme Court will take up gay marriage”. msnbc. 29 September 2014.

—————. “Marriage equality comes to five more states”. msnbc. 6 October 2014.

SCOTUSblog. “Practically, today SCOTUS recognized a right to SSM”. Twitter. 6 October 2014.

The Picture: Marriage Equality Mix

“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?

One of the Most Fascinating Political Questions of the Year

“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”

―Steve Benen

And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?

Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.

If her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.

In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.

The Unfortunate State of Things

Jen Sorensen undertook the obvious point in the wake of the Supreme Court’s quixotic disaster otherwise known as Burwell v. Hobby Lobby. And, yes, she wins the race on style.

Still, though, a question arises. To the one, we are Americans, and everyone knows just how undignified it would be if people actually acted like those depicted in the cartoon. To the other, we are Americans, and everyone knows just how undignified it is to behave that way unless one is a patriot using a gun to menace locals in the name of the Second Amendment, or shouting at, threatening, and assaulting women.

The truth is that no matter how much Justice Scalia might need to be tomatosmacked upside the head, it would be inappropriate to actually start chucking table vegetables.

Meanwhile, the question arises, looms, persists: Then what does it take?

The explanation for this is simple enough under a general psychoanalysis of history: We judge women’s humanity as a reflection of manhood.