Equality Under the Law Applies Nationally

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Ronald Reagan’s Attorney General Ed Meese, a social conservative who supported the federal marriage amendment that would have limited marriage throughout the U.S. to opposite-sex unions, now argues we should let states, not courts, decide marriage policy.

Sorry, Ed, that ship has sailed. You and your fellow social conservatives should have taken the deal when it was on the table.

11 Comments for “Equality Under the Law Applies Nationally”

  1. posted by Tom Scharbach on

    Sorry, Ed, that ship has sailed.

    Yup. And sunk, too.

    For those interested, Yishai Schwartz has a very interesting take on the cases coming before the Supreme Court, in a New Republic article titled “The Supreme Court Has Two Ways to Legalize Gay Marriage. This One Is Better. The article contrasts the reasoning in the 7th and 10th Circuits.

  2. posted by Houndentenor on

    Unfortunately for Schwartz marriage became a federal issue with DOMA. And while I agree that the time for them to compromise was while they still had the upper hand, who would have believed 12 years ago that we’d be in this position on gay marriage. In fact, letting states decide would just be a slower path to the same results if we believe the current polling. We actually won the last few ballot initiatives (after losing virtually all of them before…with only Arizona being a temporary win on a technicality). They’ve lost and these demands for a compromise are as laughable to use as the reverse would have been to them at a time a dozen years ago (or even more if we go back to the passage of DOMA) when we didn’t even have a majority of Democrats on our side.

    • posted by Tom Scharbach on

      I think that maybe you have Schwartz and Meese mixed up. The Schwartz article has nothing to do with whether marriage is or is not a “federal” issue.

      It has to do with whether anti-marriage laws and/or amendments are unconstitutional because the constitution forbids discrimination without a clear and important purpose (the 7th Circuit rationale) or because the constitution forbids the federal and state governments from denying any citizen the right to exercise a fundamental human right, discrimination or no discrimination.

      Marriage is not, and never has been, a “federal” issue. Marriage is a “state issue”, in the sense that (a) the Constitution reserves powers not granted to the federal government to the states or to the people, and (b) the states have regulated marriage since the founding. The rub is that the states cannot exercise any power — including but not limited to marriage regulation — in a manner that violates the federal Constitution. Whichever rationale the Court chooses (the fundamental right route or the discrimination route) when it decides the issue, the question will be whether state laws and/or anti-marriage amendments violate the right of individuals under the Constitution. And we know the answer, I suspect.

      I greatly enjoyed Judge Posner’s decision in the Wisconsin and Indiana cases. He took the anti-marriage “rationale”, chewed it up, spit it out, ground it to dust, and then rubbed his boot heel on it. It was vindication for all the years that we’ve had to listen to the assholes.

      But I’m wondering whether the “fundamental right” approach might be one approach that could get us from 5-4 to 6-3, and, in the long run, might be an approach that creates less friction in our culture.

      I’m also, while I’m speculating, starting to wonder if the fastest route to marriage equality nationwide would be for the Court to not decide the issue.

      Here’s the scenario:

      We have 80 cases moving forward, cases covering every single state. Marriage equality is a fact on the ground in all states in the 1st, 2nd and 3rd Circuits. The 4th, 6th and 10th Circuits have issued pro-equality decisions. Assuming that the 6th Circuit (possible, if Sutton has his head out of his ass) and 9th Circuit (expected) rule in favor of marriage equality, that leaves only the 5th, 8th and 11th Circuits to rule on the issue.

      Assuming that both the 6th and the 9th (with opinions expected in the next few weeks) both rule in favor of marriage equality, and the cases are appealed to the Court. And then assume that the Court denies cert in all of the cases before it.

      That will have two effects: (1) marriage equality will either be or become (as a result of the precedent value of the Circuit decisions) the law in all states except Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, Texas, Missouri, North Dakota and South Dakota; and (2) although decisions denying cert do not, as a technical matter, have precedent value, the federal and state courts in those states are extremely unlikely to ignore the message “sent” by the Court when it effectively legalizes marriage equality in most states of the Union. We already have marriage equality decisions in many of the outlier states, and others, it seems to me, will follow quickly after the Court denies cert, if that is what it does.

      I don’t think that this scenario is likely, for the reason I pointed out in another thread (Alito, Scalia and Thomas are almost certainly unwilling to let the Court effectively legalize marriage equality nationwide without having something to say about it), but it is an interesting idea.

      • posted by Aubrey Haltom on

        I’m sure you’ve seen this already, Tom. But I wonder if it’s just Scalia messing with the students, or if he’s really offering a hint.
        http://blog.seattlepi.com/seattlepolitics/2014/10/03/soon-soon-supreme-court-to-take-up-gay-marriage-scalia/

        • posted by Tom Scharbach on

          Scalia’s comments, like Ginsberg’s were another teaser. The Blade has an article this morning looking at the mix. We will have another set of orders down this morning, and I’ll be very interested to see what the Court does in the five marriage cases — deny cert, grant cert, or remain silent for a while, pending decisions from the 6th and 9th Circuits.

        • posted by Tom Scharbach on

          SCOTUSBlog just reported this: “The Court issued orders today from the September 29 Conference. All seven of the same-sex marriage petitions have apparently been denied. There were no new grants today.”

          Assuming that’s right — I haven’t seen the order yet with my own eyes — it looks like the scenario I posited as “not likely” is going to go down.

  3. posted by Jorge on

    Sorry, Ed, that ship has sailed. You and your fellow social conservatives should have taken the deal when it was on the table.

    …oh, that’s right. DOMA as applied to the states is still on life support yet.

    I think all these people who think there’s no plausbile rational basis because of how much times are changed are too short-sighted and too optimistic in the future.

    • posted by Mike in Houston on

      Too right Jorge — people seem to forget that for all of its sweep, Windsor was actually narrowly applied and struck down only one section of DOMA.

      Now, I wonder how the Justices will square the rest of DOMA with the Full Faith & Credit Clause or even the Commerce Clause when it comes to the marriage contract not being recognized from state to state.

      • posted by JohnInCA on

        As I recall, there is (broadly speaking) two kinds of cases re: marriage at the moment. There are the “our state ban is unconstitutional” ones and the “recognize our out-of-state marriage” ones. DOMA is only relevant to the second.

        So if the justices make a sweeping judgement on the first (that state bans are unconstitutional) then they can actually leave DOMA on the books. It will be effectively neutered, as marriage equality will be a fact everywhere, but it will still technically be a law.

        The justices only *have to* play with DOMA if they go for the second set of cases (state recognition of out-of-state marriages).

        So yeah. Justices may choose to axe the rest of DOMA. Or they may sidestep it.

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