Marriage Equality and the Liberty Movement

While the freedom to marry for gay people is often framed as a victory for big-government progressivism (by both progressives and conservatives), Grover Norquist writes that it’s actually part of a wider trend of increasing liberty—which includes marijuana legalization, gun ownership and home schooling—and that the liberty movement draws from the political left and right (while rejecting aspects of both). As Norquist observes:

The relevant dividing line is not right versus left or Republican versus Democrat but the expansion of individual liberty versus whatever and whosoever stands in the way. …

Thirty years ago there were laws actually criminalizing gays…. Once unthinkable, now gay marriage appears inevitable. Attitudes toward gay Americans have shifted dramatically. Yes, the courts drove some of these changes, but public opinion has also shifted dramatically over the decades.

The drive for gay rights has moved quickly, and yet when some politicians have demanded that gay rights means a Christian florist or minister has to participate in a gay wedding against his religious beliefs, the pendulum appears to stop and may swing back. Why? Because freedom of religion then trumps “you do what I want.” The team that frames its side as “defending and expanding liberty” will win.

35 Comments for “Marriage Equality and the Liberty Movement”

  1. posted by Tom Scharbach on

    Just as a place marker, since a lot of numbers are being tossed around, this is the list of states enjoying marriage equality at this point, and the cases of which I am aware in the states that do not yet enjoy marriage equality:

    1ST CIRCUIT

    MAINE – Marriage Equality
    MASSACHUSETTS – Marriage Equality
    NEW HAMPSHIRE – Marriage Equality
    RHODE ISLAND – Marriage Equality

    2ND CIRCUIT

    CONNECTICUT – Marriage Equality
    NEW YORK – Marriage Equality
    VERMONT – Marriage Equality

    3RD CIRCUIT

    DELEWARE – Marriage Equality
    NEW JERSEY – Marriage Equality
    PENNSYLVANIA – Marriage Equality

    4TH CIRCUIT
    Equality Decision

    NORTH CAROLINA – Marriage Equality
    South Carolina (*)
    – Bradacs v. Haley
    VIRGINIA – Marriage Equality
    WEST VIRGINIA – Marriage Equality

    5TH CIRCUIT
    Appeals Pending

    Louisiana – Mixed Decisions
    – Forum for Equality Louisiana v. Barfield – On appeal to 5th Circuit
    – Robicheaux v. George – On Appeal to 5th Circuit
    In Re Costanza and Brewer – On Appeal (Louisiana)
    Mississippi
    – Czekala-Chatham v. Melancon
    Texas – Equality Decision
    De Leon v. Perry – On Appeal to 5th Circuit
    – McNosky v. Perry
    – Zahrn v. Perry
    – J.B. v. Dallas County and Texas v. Naylor
    – ALFI v. KLL

    6TH CIRCUIT
    Appeals Pending

    Kentucky – Equality Decision
    Bourke v. Beshear – On Appeal to 6th Circuit
    – Kentucky Equality Federation v. Beshear
    – Romero v. Romero
    Michigan – Equality Decision
    DeBoer v. Snyder – On Appeal to 6th Circuit
    Ohio – Equality Decision
    Obergefell v. Wymyslo – On Appeal to 6th Circuit
    Henry v. Wymyslo – On Appeal to 6th Circuit
    – Gibson v. Himes
    Tennessee – Equality TRO
    Tanco v. Haslam – On Appeal to 6th Circuit

    7TH CIRCUIT
    Equality Decision

    ILLINOIS – Marriage Equality
    INDIANA – Marriage Equality
    WISCONSIN – Marriage Equality

    8TH CIRCUIT
    No Appeals Pending

    Arkansas – Equality Decision
    – Jernigan v. Crane
    Wright v. Arkansas – On Appeal (Arkansas)
    IOWA – Marriage Equality
    MINNESOTA – Marriage Equality
    Missouri
    – Barrier v. Vasterling
    Nebraska
    – Nichols v. Nichols
    North Dakota
    – Ramsay v. Dalrymple
    – Jorgensen v. Montplaisir
    South Dakota
    – Rosenbrahn v. Daugaard

    9TH CIRCUIT
    Equality Decision

    Alaska (*)
    – Hamby et al. v. Parnell et al.
    Arizona (*)
    – Majors v. Roche
    – Connolly v. Roche
    CALIFORNIA – Marriage Equality
    HAWAII – Marriage Equality
    IDAHO – Marriage Equality
    Montana (*)
    – Rolando v. Fox
    NEVADA – Marriage Equality
    OREGON – Marriage Equality
    WASHINGTON – Marriage Equality

    10TH CIRCUIT
    Equality Decision

    COLORADO – Marriage Equality
    Kansas (*)
    – Nelson v. Kansas Department of Revenue
    NEW MEXICO – Marriage Equality
    OKLAHOMA – Marriage Equality
    UTAH – Marriage Equality
    Wyoming (*)
    – Courage v. Wyoming

    11TH CIRCUIT
    Appeals Pending

    Alabama
    – Hard v. Bentley
    – Searcy v. Bentley
    – Richmond v. Madison County Clerk
    Florida
    Grimsley and Albu v. Scott – Equality Decision – On Appeal to 11th Circuit
    Brenner v. Scott – Equality Decision – On Appeal to 11th Circuit
    Pareto v. Ruvin – Equality Decision (Florida)
    Huntsman v. Heavilin – Equality Decision (Florida)
    – Dousset v. Florida Atlantic University (Florida)
    – Shaw v. Shaw – (Florida)
    Georgia
    – Inniss v. Aderhold

    (*) State indicated is in Circuit with binding precedent mandating marriage equality.

  2. posted by Tom Scharbach on

    While the freedom to marry for gay people is often framed as a victory for big-government progressivism (by both progressives and conservatives), Grover Norquist writes that it’s actually part of a wider trend of increasing liberty—which includes marijuana legalization, gun ownership and home schooling—and that the liberty movement draws from the political left and right (while rejecting aspects of both).

    This is a cartoon version of reality. Or perhaps history rewritten from a “libertarian” perspective. In any event, the dichotomy drawn is inaccurate.

    Marriage equality is neither a move toward big government nor a move away from big government. Marriage equality is neither a move toward individual liberty nor a move away from individual liberty.

    Civil law marriage has been a function of government from the beginning of our country’s history, starting with the first marriage performed in what is now the United States, the marriage of Edward Winslow and Susanna White, performed by Governor Bradford in 1621 in the Massachusetts Bay Colony. Government, not the churches or the clergy, provided the legal structure of civil law marriage, as government does today. Although clergy became involved in performing marriages over the years, the clergy performing marriages acted as agents of the government.

    Clergy can perform religious marriages, valid from a perspective of a particular religious denomination, but unless and until the clergy performing the marriage completes and returns the necessary paperwork to register the marriage with the government, no marriage exists at civil law. Witness the many religious marriages performed by Reform and Conservative rabbis over the last several decades, marriages valid and binding for religious purposes but not recognized in most states as civil law marriages.

    On the other side of the coin, civil law marriages do not depend on the participation of clergy, but instead can be (and are routinely) performed by judges, magistrates, clerks of court and all manner of non-clergy authorized by the government to perform civil law marriages.

    Civil law marriage is a function of government, a civil union existing as a result of, and solely as a result of, the laws that regulate civil law marriage.

    To state this is to belabor the obvious, but it is a point too often forgotten.

    Marriage equality does not extend the power of the government, or the reach of the government. Nor does marriage equality diminish the power of government to regulate civil law marriage or lessen the government’s reach over regulation of civil law marriage. All that marriage equality does is to extend civil law marriage to gay and lesbian couples.

    Citizens of a number of states have experienced that reality during the past week. When Michael and I woke up on Monday morning, we were not married under the laws of the state of Wisconsin. But the time we went to bed that night, we were married under those laws. Not a single one of those laws substantively changed as a result.

    Although the Legislative Reference Bureau will be recommending technical changes to the law to conform Wisconsin’s laws to the ruling in Wolf v. Walker (e.g. changing Section 765.01, which now reads “ Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.” to eliminate reference to “husband and wife” and reference “spouses” instead), the technical changes that will be proposed are just that — technical changes without substantive expansion or limitation of the laws of the state.

    To my mind, Norquist is being somewhat disingenuous when he suggests that marriage equality has expanded individual liberty, if individual liberty is understood in traditional libertarian terms, that is, limitation or removal of the power of government over the lives of individual citizens. His suggestion is also contra-libertarian, in the sense that libertarian thinking, at least as embodied in the platform of the Libertarian Party, stands for the proposition that civil law marriage should not exist at all (“Government does not have the authority to define, license or restrict personal relationships.“).

    It seems to me, as well, that Norquist is papering over an obvious difference when he equates the long battle to remove onerous laws criminalizing homosexual behavior of one sort or another (sodomy laws, laws restricting dancing and/or displays of affection between gays and lesbians in bars, censorship laws, and so on) with marriage equality.

    Eliminating laws (like the sodomy laws) that criminalized private behavior was indeed, an expansion of personal liberty. Marriage equality was not. Marriage equality allows an additional class of couples, specifically gay and lesbian couples, to enter into the state-created, state-regulated and state-control civil contract that is civil law marriage.

    As Jack Kennedy (quoting someone else) noted after the Bay of Pigs fiasco, “Victory has a thousand fathers …” And as Mary McCarthy noted, “We are all the heroes of our own stories.

    Libertarian-minded gays and lesbians played a role in the victories we have been celebrating this week, as we all did. A reality-based assessment, though, is at odds with Norquist’s version of the story.

  3. posted by Tom Scharbach on

    The drive for gay rights has moved quickly, and yet when some politicians have demanded that gay rights means a Christian florist or minister has to participate in a gay wedding against his religious beliefs, the pendulum appears to stop and may swing back. Why? Because freedom of religion then trumps “you do what I want.”

    If Norquist is unable to distinguish between forcing a minister to participate in a gay wedding (something that nobody is proposing) and requiring a business to serve the public without discriminating, he needs a lesson in basic logic.

    The team that frames its side as “defending and expanding liberty” will win.

    I don’t agree. I think that the “team” (since when have we formed into opposing teams?) that frames the issue as one of basic fair play will win. The religious conservatives (aided and abetted by the so-called “libertarian” wing of the Republican Party) is trying to win the “freedom” to discriminate against gays and lesbians, and gays and lesbians alone. That is not an expansion of freedom; it is a continuation of discrimination, a continuation of singling out gays and lesbians for special treatment (in this sense negative treatment) under the law. .

  4. posted by Lori Heine on

    That is a disingenuous argument in and of itself. People are going to use their freedom to do any number of things that you or I might not like. Selectively discriminating against gays and lesbians may very well be one of those things. But if freedom is to be “granted” to them by the government, which in its supposedly-infinite wisdom gets to determine when it is, and when it is not, okay to discriminate, then that is no freedom at all.

    Show me, please, where any of the religious freedom laws the social right wants to pass would prohibit me from refusing to serve a homophobe. Go ahead…I’ll wait. The fact of the matter is that they don’t. These laws will probably be used by anti-gay businesspeople to discriminate selectively against gays. Jerks will use their freedom to be jerks.

    Why that requires the government be given the heavy-handed power to play God, and pick and choose whose reasons for discriminating might be valid and whose are not, is something that is never explained. No attempt is ever being made to explain it.

    Here is the explanation, appropriately translated into caveman or little-kid speak:

    “They are bad people. I don’t like them. I should be given a big stick so I can hit them.”

    I’d still prefer to walk a little farther down the street and find a merchant who willing chooses to serve me. That’s the one I’d want getting my money anyway.

    • posted by Tom Scharbach on

      Why that requires the government be given the heavy-handed power to play God, and pick and choose whose reasons for discriminating might be valid and whose are not, is something that is never explained. No attempt is ever being made to explain it.

      Here is the explanation, appropriately translated into caveman or little-kid speak:

      “They are bad people. I don’t like them. I should be given a big stick so I can hit them.”

      Let’s look at the proposed Oregon law, Lori. It is a law that provides a “religious freedom” exemption to Oregon’s public accommodation law, which prohibits a person or company holding itself out as doing business with the general public from discriminating “on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older”.

      SECTION 1. This 2014 Initiative shall be known as the Protect Religious Freedom Initiative and is intended to exempt a person from supporting same-sex ceremonies in violation of deeply held religious beliefs.

      SECTION 2. Religious freedom is the first freedom guaranteed by the United States Constitution. It is a fundamental human right and is the right to express, think and act upon what you deeply believe. Religious freedom upholds stability in a diverse society. Wherever religious freedom is high, there is better health, more economic prosperity, lower income inequality and sustained democracy. Religious freedom protects the rights of all individuals and groups, whether religious or not. Unfortunately, there are groups pushing the view that religion is purely a private matter and that religious voices or opinions should be silenced. Religion is more than just private worship. It involves public expression on moral and social issues. Religious freedom, our first freedom, needs protection as this Initiative intends to do.

      SECTION 3. (1) As used in this section:

      (a) “Person” includes individuals, sole proprietorships, nonprofits, corporations, associations, firms, partnerships, limited liability companies, or other legal entities defined in ORS 174.100(5).

      (2) Notwithstanding any other provision of law, if doing so would violate a person’s deeply held religious beliefs, a person acting in a nongovernmental capacity may not be:

      (a) Penalized by the state or a political subdivision of this state for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements; or

      (b) Subject to a civil action for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

      (3) This section must be construed in favor of the broad protection of religious exercise to the maximum extent permitted by the Oregon Constitution and the United States Constitution.

      The law expressly permits/sanctions discrimination against gays and lesbians. The law does not permit/sanction discrimination against any other class protected by Oregon’s public accommodations laws.

      The law identifies “bad people”, all right. It identifies you and me, and other gays and lesbians, as “bad people”, in a different class than all the other citizens falling in protected classes, and expressly permits/sanctions a special class of discrimination.

      The nature of the targeted discrimination is so transparent that the law doesn’t even bother to try to cloak its intent by permitting “religious freedom” objections other forms of marriage to which a business owner might have a religion-based objection, such as interracial marriage, remarriage after divorce, interfaith marriage, and so on.

      You can bet that if a law like this makes it to the books, it will be challenged on constitutional grounds. I can’t wait to see a legislature try to come up with a religiously-neutral and objectively rational reason why it is important to legislate protection for a religious belief that same-sex marriages violate G-d’s law, but that it is not important to protect any other religious beief objecting to other forms of marriage.

      I’d still prefer to walk a little farther down the street and find a merchant who willing chooses to serve me. That’s the one I’d want getting my money anyway.

      If laws like this pass — and conservative Christians and the Republicans who cater to them will do what they can to overcome the American sense of fair play and pass them if they can — and it won’t be a matter of “preference” anymore, not for you. It will be a requirement protected by the force of law.

      • posted by Lori Heine on

        The section of the legislation that specify discrimination strictly against same-sex couples is, then, the part that should be opposed. Stupidly, the overgrown children on the religious right who proposed the law could not resist throwing that part in there.

        That doesn’t mean that the government has the right to bar them from abiding by their “deeply-held religious convictions.” Despite the hoopla, most won’t–unless they want to go out of business.

        I’m with Houndentenor–the whole discussion is absurd. But the crying and handwringing the religious right is doing now IS having an effect. And it’s a negative one for us.

        I’m not the one to argue with about whether it should be having this effect. It simply is. This is unnecessary, and it’s stupid. We’re shooting ourselves in the foot.

        Again, Tom, your argument does boil down to: “They are bad people, doing bad things. Let’s hit them.”

        I still say point, laugh, and wait for the fools to go out of business. But of course, I live in Arizona–where “We Proudly Serve Everyone” signs adorn the windows of many businesses, even months after the failure of SB1062. Bearing further testimony to what would have happened had that bill passed.

        • posted by Tom Scharbach on

          I’m with Houndentenor–the whole discussion is absurd. But the crying and handwringing the religious right is doing now IS having an effect. And it’s a negative one for us.

          So did Anita Bryant’s “Save the Children” hysteria, the Bush/Rove anti-marriage amendment campaign, and a myriad of other attacks on gays and lesbians. Stand firm for “equal means equal” and this too will pass.

        • posted by Tom Scharbach on

          Again, Tom, your argument does boil down to: “They are bad people, doing bad things. Let’s hit them.”

          In your head, maybe, but not in mine.

          A significant number of Americans oppose marriage equality, mostly for religious reasons. I have no problem with that, or with them. I do have a problem with embedding that form of discrimination into law, in the form of statue or amendment. Ditto for the so-called “religious freedom” proposals that single out gays and lesbians for special treatment. The proposed laws are wrong, whatever the motivations, good or bad, behind them.

          The section of the legislation that specify discrimination strictly against same-sex couples is, then, the part that should be opposed. Stupidly, the overgrown children on the religious right who proposed the law could not resist throwing that part in there.

          There is no “that part”. The law, in its entirety, (as the law itself states) “is intended to exempt a person from supporting same-sex ceremonies in violation of deeply held religious beliefs”. The part is the whole.

          In a larger sense, though, singling out gays and lesbians for special discrimination is exactly what I am opposing. Nothing more, nothing less. I support personal conscience exemptions to laws — all laws, not just public accommodations laws — so long as the exemptions are religion-neutral, issue-neutral and class-neutral. I’ve consistently argued for, not against, such laws.

          I don’t mind if the laws are limited in scope. If it would be in society’s best interest to provide a personal conscience exemption with respect to marriages, and marriages alone, that’s fine with me, so long as the exemption covers all forms of marriage (e.g. same-sex, interfaith, interracial, remarriage, and so on), not just same-sex marriage.

          We do not have to cave in, Lori, just because religious conservatives and the Republican Party are whipping up yet another maelstrom. We should not, in my opinion. The American people are, at core, decent and fair-minded. We can count of them to see through the smoke and mirrors if we stay the course.

          • posted by Lori Heine on

            Tom, you are so oriented toward government intervention that you are still fixated on the notion that people in the government should be determining which exemptions should apply and which shouldn’t. The issue isn’t whether the narrowly-applied exemption (against us alone) is really morally or logically defensible. It certainly isn’t. The issue is, who gets to decide this?

            In a single election cycle, state power used to help us can be turned against us. It has happened before, and our slipping poll numbers show that it can happen again. We remain a tiny minority, about which a huge number of people remain ambivalent.

            I am well aware that equal should mean equal. If that’s self-evident to me, I believe a large majority can eventually become convinced of it. The trend has definitely been in that direction. I see no reason to reverse it by trying to ride the tiger, when we could just as easily end up inside.

          • posted by Houndentenor on

            In that case I offer a modest proposal. Under this compromise businesses will be able to refuse service to gay people BUT vendors, landlords, etc who find that position morally reprehensible will be able to discriminate against those business owners. Recently there was a venue that cried fowl after refusing to marry a gay couple when a straight couple canceled their event. They want to be able to discriminate but not be the subject of discrimination. If they want to refuse business to gay couples, let them. But if vendors refuse to supply them or rent to them, that should be their right as well. I don’t expect for anyone to take this up, but it seems reasonable to me. Or, we can just continue with the anti-discrimination laws that have been in place for decades. I’m fine either way.

          • posted by Tom Scharbach on

            Tom, you are so oriented toward government intervention that you are still fixated on the notion that people in the government should be determining which exemptions should apply and which shouldn’t. The issue isn’t whether the narrowly-applied exemption (against us alone) is really morally or logically defensible. It certainly isn’t. The issue is, who gets to decide this?

            Whatever my orientation, public accommodation laws exist in all 50 states. In about half, public accommodation laws cover sexual orientation. That is the reality.

            Saying that it shouldn’t be the reality is fine, I suppose, but it doesn’t go anywhere when confronting the proposed exemptions to the existing laws.

    • posted by Houndentenor on

      I can’t help but laugh at the entire discussion. I’m actually fine with carving out some exceptions so that bigots don’t have to bake a cake or arrange some flowers for a gay wedding. But I just can’t find it in me to feel bad for someone acting the victim and claiming their rights are being violated when they aren’t for rights for other people. If social conservatives want to cut a deal, then they should offer one. They haven’t. They are still fighting against gay marriage AND trying to make themselves out as victims when anti=discrimination laws make them serve gay customers like everyone else. Either they are for these freedoms or they are not but this idea that they should get to have it both ways is a joke. So either make the offer…marriage equality nationwide in exchange for some sort of religious exemption or they need to shut up and take what’s coming next. The clock is ticking.

  5. posted by Mike in Houston on

    I’m not going to lather, rinse and repeat on marriage equality and public accommodation laws… I will note, however, that this new “religious liberty” claptrap is hard to take the least bit serious when it’s espoused by a political party that reacts like this: http://talkingpointsmemo.com/livewire/asheville-north-carolina-gay-pride-flag-city-hall-nazi-flag

  6. posted by Jorge on

    Okay, now I think both Tom Scharbach and Grover Norquist are trying to fit square pegs into round holes. It’s inevitable to try to explain novel events by using your favorite frame of reference. “Liberty” and “big government” are both too simplistic. But that does not mean the entire comparison is invalid, or that the observations are unsound. It does not mean the comparison is based on an inaccurate perception of reality. It is simply that the reality is not being described well.

    Anyway…

    The drive for gay rights has moved quickly, and yet when some politicians have demanded that gay rights means a Christian florist or minister has to participate in a gay wedding against his religious beliefs, the pendulum appears to stop and may swing back. Why? Because freedom of religion then trumps “you do what I want.” The team that frames its side as “defending and expanding liberty” will win.

    I’m not sure there’s any evidence the pendulum is stopping or swinging back.

    I do see it slowing down. The comments I hear at at work are increasingly unfavorable. This website catalogues a lot of angst. There is certainly resentment. Perhaps you could argue that there has been a negative effect on the passage of ENDA. That’s about it. Look at where major potential Republican candidates are on the issue of same-sex marriage. They don’t want to deal with it.

  7. posted by Tom Scharbach on

    It looks like we can add Alaska to the marriage equality list. The chances that the 9th Circuit will issue a stay are slim, at best.

    • posted by Jim Michaud on

      This may be purely coincidental, but we’ve now had the newest (NC) and oldest (AK) SSM bans struck down back-to-back.

    • posted by Kosh III on

      O goodie. Maybe Sarah Palin will take herself and her disfunctional klan and camp followers to that country(Russia) she can see from her window.

      • posted by Jorge on

        The Russia reference is inevitable, but how on earth a comparison between the Palin family or constituency and the Ku Klux Klan is anywhere closer to sensible than Russia is from my house is beyond me.

        • posted by Doug on

          I believe the reference to ‘klan’ refers to Palin’s extended family not the KKK.

  8. posted by Houndentenor on

    Andrew Sullivan made the conservative case for gay marriage almost 20 years ago. I think I still have the book somewhere (signed even!). Conservatives could have taken that up at any time. Ted Olson…who else? Almost no one. It’s not the fault of liberals or moderates or “big government” strawmen that they didn’t.

    • posted by Tom Scharbach on

      It was Jon Rauch’s 2004 book that convinced me. His “gold standard” arguments resonated with my own Midwestern values. I read it, thought about his argument for a while, and then never looked back at domestic partnerships, civil unions or any other compromise “solution”. I have never understood why the book didn’t resonate with its intended conservative audience.

      • posted by Houndentenor on

        The same people who are now against gay marriage were also against civil unions. The idea that there was ever a “compromise solution” offered by the right is laughable. It was liberals terrified of the religious right who trotted out the compromises and even those were shot down in most cases.

  9. posted by Tom Scharbach on

    A quiet note on numbers: I notice this morning that a number of media are reporting “And Alaska makes 30!” The actual count of marriage equality states is 29, not 30.

    I think that the media are counting Missouri, which recognizes out-of-state marriages but continues to ban in-state marriage equality. The lawsuit that is challenging Missouri’s ban on in-state marriage equality (Lawson v. Jackson County Department of Recorder of Deeds) has not yet come to trial or been decided, and the 8th Circuit has no pending appeals, so marriage equality is a bit down the road for Missouri, yet.

    I mention this only because the numbers game was driving me batty, like Aunt Sally’s spoons. I kept coming up one state short. I now know why. I guess it all depends on how you define “marriage equality”.

    • posted by Jim Michaud on

      Thanks Tom for all your legal expertise. However, I’m a visual, map oriented person. Here is the map of the circuits (in the enclosed article):
      http://www.wikipedia.org/wiki/United_States_courts_of_appeals
      I now can see how the changing map of Marriage Equality states took the shape it did.
      Now for a tangent that hasn’t been addressed yet (and doesn’t affect the state count): what about the territories and possessions? Puerto Rico, US Virgin Islands, Guam, American Samoa and Northern Mariana Islands are all part of the United States. PR is in the 1st circuit and still bans SSM. AS is curiously absent from the circuit map.

      • posted by Tom Scharbach on

        A number of the territories and possession are somewhat autonomous and self-governing (think the Native American nations). As far as I know, though, all are subject to the constraint that none of their laws can violate the rights of citizens under the Constitution.

        I know that there is a case pending in Puerto Rico (Conde v. Padilla, challenging Puerto Rico’s refusal to recognize out-of-state marriages) that was filed in March and is in the early stages of development. I’m not aware of any activity in the others.

  10. posted by Don on

    I am glad that guys like Grover are making this argument. Is it a bit of a stretch? A little late? Sure. But I don’t care. I care more that they came to the party than the fact that they arrived right before the party ended while saying “oh, I got here ages ago . . . you didn’t see me when I came in?”

    There has to be room for those who opposed us before to join us now. And they’ve got to have some cover to do so. Grover is trying to provide it. A tardy yet plausible argument (that ignores big parts of the history of it all) is perfectly fine with me.

    I think it was Tom that argued for gracious winners. It reminds me of my mother, who cannot seem to help herself when she declares “I’ve always supported you being gay . . .”

    um, no. not even close. there was a very, very ugly 4 years. But I’ve decided to let it slide now. She is trying not to remember what she did because it was hurtful and embarrassing. I think that is just part of human nature. the ego cannot face itself when it realizes it has been cruel. And that is what we are seeing now: the cruelty of the anti-marriage policy has been laid bare.

    Should Grover have been out front as the face of the libertarian movement saying “hey! gang! we want LESS GOVERNMENT, REMEMBER!” Sure. But I’ll let him slide.

    A convert is a convert.

    • posted by Tom Scharbach on

      I agree with you in general, Don, but the question that I have is this: What are Norquist and the rest of the libertarian-minded Republicans going to actually do to bring the party around?

      If this is yet another case of self-puffery (like the ridiculous suggestion than Cato’s historical brief was the decisive factor resulting in Justice Kennedy’s decision in Lawrence), but doesn’t result in any concrete change in Republican opposition to “equal means equal”, then it doesn’t make any difference.

      • posted by Jorge on

        The gay rights movement has a diverse center-left ideology, drawing more from the left than from the right. One might want for a single rightist to have the same beneficial effect, or even more of one, than one leftist, simply because there are few supportive rightists. But that is not likely. Supporters among the right multiply slowly. Gather all the dice and keep rolling.

        And if all else fails, the base itself has some power. Where do you think the first pro-gay Republican or conservative came from? There has never been an “uncaused cause” among pro-gay conservatives. (I realize most of you know this from personal experience far more than I do… oh, I now see why you’re asking such pointed questions very loudly at the right..)

        • posted by Tom Scharbach on

          I’ll grant you that pro-equality Republicans have a tougher nut to crack than we faced in the Democratic Party.

          We did not have to fight an entrenched, powerful, ideological, anti-gay base that is determined to shape our party in its own image. All we had to do was push and shove to keep our party somewhat in line with the changes that gays and lesbians were making in the country as a whole. That was a tremendous advantage to us in making the gains we made in turning the party.

          But my question did not go to the relative difficulty in getting results. My question went to the core issue — is Norquist (a very influential voice in the party; witness the “no tax” movement’s success) going to now put his muscle behind turning the party on equality, or is he going to continue with the same old, same old, letting the hard-core social conservatives dominate the primary system? In a word, is he going to do any work to change the party, or is he going to keep doing a whole lot of nothing?

          I have the same question for the so-called “libertarian” Republicans.

          • posted by Jorge on

            Personally I think you’ve enough so-called powerful and so-called weak voices to choose from not to lose any sleep over it.

          • posted by Tom Scharbach on

            Personally I think you’ve enough so-called powerful and so-called weak voices to choose from not to lose any sleep over it.

            I don’t lose sleep over it, but I sure hope so, Jorge. I’d like to see the Republican Party turn around, and that’s a fact. I don’t want to end up in a situation like that in France, where the conservative party has developed what appears to be a permanent, entrenched opposition to equality.

            Despite my many differences with Stephen, on one thing he’s always been right: The cause of equality is best served and most likely to succeed in the long run if conservatives get on the boat.

  11. posted by Tom Scharbach on

    Several notes on the legal situation:

    (1) ALASKA – Alaska began accepting applications for marriage licenses yesterday. Alaska has a three-day waiting period, so marriages won’t actually begin until later in the week. Governor Sean Parnell issued a statement on Sunday indicating that he will fight the ruling: “As Alaska’s governor, I have a duty to defend and uphold the law and the Alaska Constitution. Although the district court today may have been bound by the recent Ninth Circuit panel opinion, the status of that opinion and the law in general in this area is in flux. I will defend our constitution.” The state has a snowball’s chance in hell of prevailing at either the 9th Circuit or the Supreme Court, but the state asked for a stay in the appeal it filed yesterday, and we’ll have to see what the 9th Circuit and the Supreme Court do about a stay.

    (2) NEVADA – An anti-gay group is attempting to step into the shoes of the state, and has filed a petition asking the 9th Circuit to hear the Nevada case en banc. The petition, in effect, accuses the 9th Circuit of “cooking the books” on marriage equality by assigning the marriage cases to the most liberal judges on the Circuit. I don’t think that it is real likely that the Coalition For The Protection Of Marriage will make it past the standing filter established in the Prop 8 case, but if it does, it will be interesting to see if the 9th Circuit takes up the case en banc, and what it does with the accusation that the court is bad to the bone.

    (3) IDAHO – Governor Butch Otter and AG Lawrence Wasden filed separate responses in the 10th Circuit yesterday, Governor Otter’s response seeking a “reasonable delay” (read stay) in implementing the court’s orders pending appeal and AG Wasden’s response indicating that immediate implementation was “fine by me”. I don’t have a clue why the responses weren’t coordinated. Idaho’s appeal to the Supreme Court will, apparently, be based on the question of whether the 10th Circuit errored by using a “heightened scruitiny” standard rather than a “rational basis” standard. If the Supreme Court grants cert, it is likely to do so on that question alone, and if Idaho is successful, the case will go back down to the 10th Circuit for reconsideration using the “rational basis” test.

    (4) FLORIDA – Most interesting of all, AG Bondi has reversed course and filed a petition with the Florida Supreme Court asking it to settle the issue in Florida ASAP, before the federal cases get traction. Until yesterday afternoon, Bondi’s position was that Florida state cases should be put on hold pending a US Supreme Court decision. IF the Florida Supreme Court steps in, it may well be that Don’s case will the case that brings equality to Florida. What makes this interesting is that the appeal from a state Supreme Court to the US Supreme Court on a federal constitutional issue must be considered as a matter of right (e.g. Baker v. Nelson) if a substantial federal issue is presented. The US Supreme Court cannot refuse to grant cert as a matter of discretion, as it has done to date in the federal cases. A Florida Supeme Court decision may be the trigger for a national decision by the US Supreme Court.

    (5) 6TH CIRCUIT. Just as a reminder, we await the decision in the 6th Circuit, expected any time now. The 5th and 6th are considered the most socially conservative Circuits in the country, and Judge Sutton, who is generally considered to be the swing in the three-judge panel, may well be the Judge who tosses the monkey wrench tirggering Supreme Court review.

    • posted by Don on

      Tom, had some attorneys look into the appeal as a matter of right in our case. Nobody can find the requirement that the Supreme Court has to take the case outside certiorari review. Some law review articles suggest the loophole may have been closed in the early 80s, after Baker. But There doesn’t appear to be a “forced” situation here.

      Is there something they are missing? Or was it a right that existed when Baker was decided that has since been dissolved?

      • posted by Tom Scharbach on

        Your lawyers are dead right. Mandatory appellate jurisdiction of the Supreme Court was eliminated in 1988. So much for depending on law school (circa 1972) knowledge and stupidly failing to check if the law had changed since Baker. A first year associate mistake. Glad I’m retired, or I’d have to fire myself.

  12. posted by Don on

    Thanks a million for all these updates, Tom. And you’re a bit more thorough and forthcoming when it comes to all the legal angles than our attorneys sometimes. well, they know this stuff. we just don’t get daily briefings. I didn’t know that our case might end up with the Supremes for the reason that you mentioned. interesting.

    And I agree with your points about Grover. I wish he would, too. But he is very ideologically driven as well. But in a selfish way. Not all small govt/anti-taxers are, but he clearly is. I got mine; you go get yours.

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