Monday, October 13, 2014

178.1 - Good News: now there are 30

Good News: now there are 30

I'm going to start, as I always like to when I can, with some Good News and if you have seen this show even just a few times you likely know what this Good News is going to be.

10 years ago, there was one. Now there are, in effect, 30 - and soon, there could be 35.

On Monday, October 6, the Supreme Court, without comment, refused to hear appeals from five states looking to have their discriminatory bans on s upheld in court. The five states - Indiana, Oklahoma, Utah, Virginia, and Wisconsin - had lost in federal appeals courts, which recognized the unconstitutionality of the bans.

That refusal to accept the appeal marks the end of the road for those cases. They are over. Those states have lost. Same-sex marriage is now legal in those states. Same-sex marriage had already been legal in 19 states and Washington, DC; this kicks the number up to 24.

What's more, it also means those appellate decisions are binding on the other states in the jurisdictions they cover. That covers six additional states: Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. Which means same-sex marriage is now essentially legal in 30 states.

It gets better:

The next day, October 7, the 9th Circuit Court of Appeals struck down bans on same-sex marriage in Idaho and Nevada, finding, as virtually all other courts considering the issue have found, that the bans are an unconstitutional violation of the 14th Amendment.

The ruling found time to ridicule an argument by Idaho Gov. Butch OtterKeepHisMouthShut that same-sex marriage makes the institution less "child-centric," claiming allowing such marriages "will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies."

In a response in a footnote, Judge Stephen Reinhardt remarked that "We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll."

The ruling should also cover three other states in the 9th Circuit that currently ban same-sex marriage: Arizona, Montana, and Alaska. Which brings the total of places where same-sex marriage is or soon will be legal to 35 states and DC.

This doesn't mean that SCOTUS will not take an appeal on the issue in the future, especially if the 6th Circuit Court upholds the bigotry, as a number of observers think it will: Having different circuits come to different conclusion on same constitutional issue makes it hard for SCOTUS to stay out. But by not taking it up now, by choosing to let this first opportunity pass by, the Court creates a new powerful momentum: By time a case is taken up, thousands of same-sex couples will have married based on the decisions so far, which means the Supreme Court would not only have to overturn all those decisions, which so far have been overwhelmingly in favor of marriage justice, it would have to invalidate thousands of marriages, which would create a good deal of legal chaos.

Which leads one legal observer to say the Court's refusal to accept the appeal of the five states "increases the already high probability that we are headed for an eventual ruling invalidating such laws nationwide" and a syndicated columnist to call it "another piece of evidence that the fight over [same-sex] marriage is effectively over in this country."

I can't help but recall that more than ten years ago, in May 2004, I wrote of same-sex marriage:
The time is coming. Later than we may have wished but sooner than we may have expected.
Sooner, indeed. Good news indeed.

Sources cited in links:

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