Friday, August 22, 2014

170.2 - Not Good News: Marriage justice finally loses one

Not Good News: Marriage justice finally loses one


On the other hand, we have some not good news on this front.

After United States v. Windsor, the 2013 Supreme Court decision that struck down parts of the Defense of Marriage Act, advocates of marriage justice saw a string of more than two dozen victories in state and federal courts.

But now we've lost one.

It came in a state court, in Tennessee, where Judge Russell Simmons upheld Tennessee's ban on recognizing same-sex marriages legally performed in other states. He insisted that "neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility." Which is the argument generally adopted by the minorities in the cases so far, although I'm still unclear on what basis they argue that a state's authority overrides that of the federal constitution; "tradition" just won't cut it.

Still, legal analysts say a single state court decision is unlikely to affect the federal court rulings, where the victory string remains unbroken.

So far.

All along, advocates for marriage equality have been bracing themselves for an inevitable loss, figuring it had to come sooner or later. And it looks like "sooner or later" might be on its way: Based on analysis of oral arguments, the 6th Circuit Court of Appeals, which covers Michigan, Ohio, Tennessee, and Kentucky, may be ready to break the string: Two of the three-judge panel sounded skeptical about the idea that bans on same-sex marriage are unconstitutional. One of them even declared that "I’d have thought the best way to get respect and dignity is through the democratic process," echoing the anti-constitutional and quite bluntly un-American argument that is always used to oppose civil rights suits: You do not actually have rights; what you have is the approval of the majority.

Still, even a loss in the Sixth Circuit could prove to be a benefit because having different circuit courts reach different decisions could speed up the time when the Supreme Court would take up the issue in order to resolve the conflict.

Then, of course, it gets tricky. There are four solid reactionary votes against marriage justice on that bench, there are four reliable votes in support of it - and there is Anthony Kennedy. He authored the Windsor decision, in which he seemed to only reluctantly come to the conclusion that a "traditional state role" of dealing with marriage had to fall to the rights of same-sex couples. Faced with the issue not of federal benefits for same-sex couples, which was the issue in Windsor, but the issue of same-sex marriage itself, who's to say he wouldn't look for a way to punt and say it should be left to the states.

On the other hand, in Kennedy's time on the Supreme Court, there have been three landmark civil rights cases that helped to advance LGBT rights: Romer v. Evans in 1996, which struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians; Lawrence v. Texas in 2003, which struck down sodomy laws that effectively made gay sex a crime; and the Windsor decision. Kennedy authored all three.

As MSNBC reporter Adam Serwer asked, "In some sense, it’s his life’s work. What are the chances that when he has the opportunity, he’s not going to want to finish it?"

So even there, there is a fair amount of hope.

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