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.

Showtime!

Yes, friends, the Big Show is underway. We’ll try to give Obergefell v. Hodges and its consolidated cohort appropriate consideration later in the day, but for now it is enough to point to SCOTUSblog’s live coverage.

Early analyses are available in the press, but transcripts will come later in the day.

That said, there are still two points worth noting. First, Justice Kennedy apparently brought the adoption question to bear; as the anti-gay argument has given so much focus to procreation, parenthood, and biological parentage, one wonders what they think of adoption.

Secondly, we might note that the question of sex discrimination arose. The issue has been staring at us the whole time, waiting to be summoned into the light, but such simple views of gay marriage and gay rights have generally been disdained for being so simple that they might settle the issue early, before politicians and advocates have had a chance to make some money trying to scare the hell out of people with fantasies about being forced to be gay and other such absurdity. Word is that Chief Justice Roberts asked the question.

Both these points have special significance in my outlook; I am gratified to hear they have a place in the discourse.

Additionally, a protester reportedly got close enough to the Justices to tell them they would burn in Hell, or some such.

Today sounds very much like a good day.

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Goldstein, Tom, Eric Citron, and Tejinder Singh. “Live blog: Obergefell v. Hodges”. SCOTUSblog. 28 April 2015.

The Countdown (This Is Embarrassing Remix)

Well, yeah, that’s embarrassing. Somehow I looked at the calendar wrongly, thought today was the twenty-eighth, and never got my head straight. It is not exactly useful to point out that nobody corrected me; I did this to myself.

That said, oral arguments for marriage equality are tomorrow, which offers one last opportunity to wrap our heads around what is about to happen; I might recommend Lyle Denniston’s overview for SCOTUSblog.

(sigh)

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Denniston, Lyle. “Same-sex marriage: The decisive questions”. SCOTUSblog. 26 April 2015.

The Countdown: One Week

We should not let it pass unmentioned that there is one week left before oral arguments in Obergefell, when marriage equality has its day before the Supreme Court. Amy Howe of SCOTUSblog offers the press some advice on covering the case, but it’s pretty much worth a read for anyone who wants to know what’s about to happen.

About the briefs. There are a lot of them. Some amount of triage is essential to get ready for the oral argument. All of the briefs are housed here on the blog (organized for each case — Ohio, Tennessee, Michigan, and Kentucky) and on the Supreme Court’s own website.

In each of the four cases, the parties’ briefs are generally the most important. There are briefs on the merits by the plaintiffs challenging the state laws; they are known as the “petitioners” because they “petitioned” the Court to review the lower court’s decision upholding the state laws. On the other side, each set of state officials defending the laws – known as the “respondents” – filed briefs in their respective cases. The petitioners also get to file reply briefs, which are due at the Court on the afternoon of April 17.

In addition to the parties’ briefs, there are also over a hundred amicus, or “friend of the court,” briefs filed by everyone from the Cleveland Choral Arts Association and Facebook – both of which filed briefs in support of the challengers – to the U.S. Conference of Catholic Bishops and an advocacy group founded by Mike Huckabee, which support the states that seek to uphold bans on same-sex marriage. The United States also filed an amicus brief supporting the challengers.

With the possible exception of the Justices’ law clerks, no one will read all of these amicus briefs – and you don’t really need to either. Each amicus brief is required to contain a “summary of argument,” which lays out the issues that the brief will cover and generally gives you enough information to decide whether you want to keep reading or instead move on to the next one. The only exception is the brief of the United States, which always receives considerable attention from the Court (and which will participate in the oral argument on the marriage question).

And that’s just part of what you need to know before the show gets started. It is worth noting that the Court is allowing a longer session for oral arguments, two and a half hours split into two parts. The first will see the Court spend ninety minutes on the basic marriage question, with Mary Bonauto arguing on behalf of the same-sex couples, Solicitor General Donald Verrilli representing the United States, and John Bursch of Michigan explaining the case for the states. Of the three, only Bonauto will have rebuttal time.

The second part will have to do with the recognition question, and in this case it really would seem rather quite clear. Nonetheless, Douglas Hallward-Driemeier will stand for the challengers; Joseph Whalen of Tennessee will represent the states.

For a look at what we’ve heard before, and perhaps a hint of what’s in store, Zack Ford of ThinkProgress offers up a serving of strangeness. And despite the absurdity of a certain amicus brief, which, it should be noted, was obsolete before it was submitted―the democratic process has already brought same-sex marriage to multiple states―the crown still goes to Paul D. Clement, arguing on behalf of House Republicans in Hollingsworth, that gay marriage was wrong because “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society”, and further reasoned that same-sex couples “don’t present a threat of irresponsible procreation”.

What a show.

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Howe, Amy. “A reporter’s guide to covering the same-sex marriage cases at the Supreme Court”. SCOTUSblog. 20 April 2015.

Ford, Zack. “Ten Novel, Absurd, And Irrelevant Arguments Made In Supreme Court Briefs Against Marriage Equality”. ThinkProgress. 17 April 2015.

Savage, David G. “Gay marriage opponents take unusual tack with Supreme Court”. Los Angeles Times. 26 January 2015.

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.

Follow-up … Clean-up … Something-up

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.

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.