Friday, December 27, 2013

Inserted footnote to the previous post

Inserted footnote to the previous post

Because of the holidays, this week's edition of Left Side of the Aisle was prepared in advance. That's why there is no mention either of the dramatic case of Utah or the equally significant case of Ohio. Those decisions were handed down after the show was recorded.

Rachel Maddow's comment that the Utah case "feels different" is spot on. This could be - emphasize could be - huge. The ruling, by US District Judge Robert Shelby, is the first federal ruling about marriage justice since the Supreme Court struck down parts of the Defense of Marriage Act and it essentially dismantled the arguments raise by the state against marriage justice - which were basically the same as those raised in New Mexico and were dismissed the same way. Shelby described those arguments as "the State’s unsupported fears and speculations."

The ruling argues that getting married is a fundamental right and that states cannot strip away rights protected by the US Constitution even by means of their state constitutions. If that view were to prevail, it would mean the end of legal bars to same-sex marriage everywhere in the country.

Don't get too excited just yet: The ruling surely will be appealed 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, even though the refusal of that court to stay the effect of Shelby's ruling pending an appeal does seem curious if the court is dead set against upholding his ruling.

The Ohio case is on a much narrower point, but the language used is very important.

In that case, Judge Timothy Black ordered Ohio authorities to recognize same-sex marriages on death certificates. When couples legally married in another state moved to Ohio, which does not recognize same-sex marriage, that state regarded them as unmarried and would not refer to them as married when one spouse died.

While the decision only applied to identifications on death certificates, the language Judge Black used was strong and sweeping.
[T]he question presented 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.
For good measure, Black also said that "once you get married lawfully in one state, another state cannot summarily take your marriage away."

Either or both of these cases could easily wind up in the Supreme Court. But no matter what, it is yet another indicator that this is a case where the long moral arc of the universe is clearly, clearly, bending toward justice.

Footnote to the Footnote: When the Supreme Court overturned parts of the Defense of Marriage Act, Justice Antonin Scalia, who has a high-speed connection to Bizarro World such that I had to retire him from competition for the Clown Award, wrote a truly unhinged dissent. (Among other things, he called the majority opinion a "disappearing trail of legalistic argle-bargle" that labeled DOMA's supporters "members of a wild-eyed lynch mob" and "enemies of the human race.") As part of that dissent, Scalia 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. Shelby even wrote that Scalia had "recommended how this court should interpret the [DOMA] decision when presented with the question that is now before it." 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 interpretation of the DOMA case.


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