Saturday, August 30, 2014

172.2 - Good News: marriage justice advances

Good News: marriage justice advances

We have other good news on a by-now familiar front: marriage justice.

On August 21, federal District Judge Robert Hinkle ruled that Florida's ban on same-sex marriages is unconstitutional. Previously, four different county-level state courts had ruled the same way, but this federal court decision affects the entire state.

Hinkle noted this his is now one of 19 federal courts that have struck down state laws that bar same-sex couples from marrying. While most of the those decisions - including this one - have been stayed pending appeals, they have all reached the same conclusion: The bans violate the "due process" and "equal protection" provisions of the Constitution.

Hinkle noted that it took the Supreme Court 200 years to invalidate laws prohibiting interracial marriage and declared that "When observers look back 50 years from now, the arguments supporting Florida's ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held."

The decision also covered Florida's ban on recognizing same-sex marriages performed in other states.

I've said before that it seems just about every one of these pro-justice has some memorable line, so here is Hinkle's: After saying that the institution of marriage had survived the ending of bans on interracial marriage and it would surely do so after ending the bans on same-sex marriage, he said that "Liberty, tolerance, and respect are not zero-sum concepts."

Which is well said.

There is more good news on this front: During oral arguments on August 26, the members of a three-judge panel of the 7th Circuit Court of Appeals were barely short of openly hostile to arguments from the states of Indiana and Wisconsin, each of which is appealing a decision by a district court to throw out their bans on same-sex marriage.

For example, Judge Richard Posner blew away Wisconsin Assistant Attorney General Timothy Samuelson's attempts to use "tradition" as justification for barring same-sex marriage: “It was," Posner said, "tradition to not allow blacks and whites to marry - a tradition that got swept away.” He called prohibition of same sex marriage as drawn from “a tradition of hate … and savage discrimination.”

Lawyers for the states also fell back on the same cliched arguments about "regulating procreation," which didn't appear to impress the judges here any more than in all the other cases where they have been tried and flopped.

This was the fifth time a federal appeals court has heard arguments in a marriage equality case since last year’s Supreme Court ruling striking down central parts of the so-called Defense of Marriage Act: Previously, the 10th Circuit Court had done it twice and the 4th and 6th Circuits had done it once each. Three of those cases have seen decisions: the two in the 10th Circuit and the one in the 4th. All three upheld lower court rulings in favor of marriage justice.

The 6th Circuit hasn't ruled yet, but many advocates for marriage equality are bracing for that to be their first loss in federal court. Even so, with what looks like things going well in the 7th Circuit, that would make three circuits out of four and four decisions out of five where justice rose.

Same-sex marriage is now legal in 19 states and the District of Columbia. That is in addition to all the states affected by cases now in federal court. I say again: On this, justice is coming. It's just a question of how soon.

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