Thursday, January 02, 2014

140.1 - Good news: same-sex marriage gains in Utah, Ohio

Good news: same-sex marriage gains in Utah, Ohio

I'm going to start by saying it hasn't been a good week, for reasons I will explain. But there was some good news earlier.

Because of the holidays, last week's edition of Left Side of the Aisle was prepared in advance. So while I did get to talk about the great news that New Mexico became the 17th state to adopt same-sex marriage, I made no mention of the events in Utah or Ohio, because they happened after the show was recorded but before it was shown.

So I want to mention them briefly here. I did discuss them at a little more length at my blog, so you can check there for some additional thoughts and details.

In the case of Utah, US District Judge Robert Shelby ruled that getting married is a fundamental right and the state's prohibition against same-sex marriage violated the US Constitution. He dismissed the state's defenses, which were essentially the same as those which were raised and failed in New Mexico, as "unsupported fears and speculations."

Even though Utah has a state constitutional amendment banning same-sex marriage, Shelby ruled, correctly, that a state constitution cannot strip away rights guaranteed by the federal Constitution.

The ruling is on a fast track for an appeal to the 10th Circuit Court of Appeals, which as I have said before is generally regarded as the most conservative, even reactionary, circuit in the US. So it could be overturned. Still, it was encouraging that the Circuit Court refused to stay the effect of Shelby's ruling pending an appeal.

The Ohio case is on a much narrower point, but the language used in the ruling was broad.

In that case, Judge Timothy Black ordered Ohio authorities to recognize same-sex marriages on death certificates. Ohio does not recognize same-sex marriage, and such a couple legally married in another state which moves to Ohio is regarded there as not married. Some people wanted their marriages acknowledged on their spouse's death certificate.

So the case was, again, on a narrow point. But the language Judge Black used was sweeping and emphatic.
The question presented [he wrote], is whether a state can do what the federal government cannot - i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no. ... No hypothetical justification can overcome the clear primary purpose and practical effect of the marriage bans ... to disparage and demean the dignity of same-sex couples in the eyes of the state and the wider community.
Either or both of these cases could easily wind up in the Supreme Court. But no matter what, the long moral arc of the universe is clearly bending toward justice.

As a quick footnote, when the Supreme Court overturned parts of the Defense of Marriage Act, Justice Antonin Scalia wrote a truly unhinged dissent, as part of which he wrote that the majority opinion's logic would inevitably lead to state bans on same-sex marriage being declared unconstitutional as well.

In a delicious development, both Judge Shelby and Judge Black cited Scalia's argument in support of their decisions. Assuming at least one of these cases will get to the Supreme Court, however they ultimately play out it will still be a lot of fun watching Scalia try to deny the meaning of his own words.


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