A federal appeals court in Boston decided that the Defense of Marriage Act (DOMA) is unconstitutional. The court didn’t rule that any state must change its definition of marriage to include same-sex couples, but said if a state allows same-sex marriage then the federal government should recognize those unions—a traditional federalist view.
I believe this is the correct approach. A popular backlash would follow any Supreme Court ruling that tried to force conservative states that voted overwhelmingly to ban gay marriage to now recognize them, and an anti-gay-marriage Constitutional amendment remains possible. Just about half of the populace favors marriage equality, meaning we are still a long way from the national consensus against banning interracial marriages that was achieved prior to the Supreme Court’s overturning state laws that forbid those unions.
It’s worth noting that this case was decided by a three-judge panel, and that two of the judges were appointed by Republican presidents. Judge Michael Boudin, who wrote the unanimous decision, was appointed by President George H.W. Bush and Judge Juan R. Torruella was appointed by Ronald Reagan. That’s no guarantee that Romney-appointed judges won’t be hard-core social conservatives, but it points to the value of a pursuing a bipartisan approach to achieving legal equality.
16 Comments for “A Victory for Marriage Equality”
posted by A Victory for Marriage Equality | QClick Radar on
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posted by Tom Scharbach on
The court didn’t rule that any state must change its definition of marriage to include same-sex couples, but said if a state allows same-sex marriage then the federal government should recognize those unions—a traditional federalist view.
The issue is state definition of marriage was not presented to the court. A court cannot rule on issues not presented to it. The question before the court was the federal issue, not the state issue.
Just about half of the populace favors marriage equality, meaning we are still a long way from the national consensus against banning interracial marriages that was achieved prior to the Supreme Court’s overturning state laws that forbid those unions.
No consensus existed supporting interracial marriage when the interracial marriage ruling was issued. The Supreme Court decided in Loving v. Virginia in 1967. A Gallup poll a year later in 1968 showed that only 20 percent of Americans approved interracial marriage; 73 percent opposed. It wasn’t until 1991 that a plurality (46% to 42%) emerged approving interracial marriage.
It’s worth noting that this case was decided by a three-judge panel, and that two of the judges were appointed by Republican presidents. Judge Michael Boudin, who wrote the unanimous decision, was appointed by President George H.W. Bush and Judge Juan R. Torruella was appointed by Ronald Reagan. That’s no guarantee that Romney-appointed judges won’t be hard-core social conservatives, but it points to the value of a pursuing a bipartisan approach to achieving legal equality.
I don’t follow your logic.
Republican-appointed judges appointed in the 1980’s and 1990’s routinely join decisions favorable to marriage equality. Judge Walker, who decided the California case, was appointed by President Bush I, and a majority of the judges who decided for marriage equality in Massachusetts were appointed by Republican Governors.
But those appointments were made before “original intent” became a litmus for Republican-appointed judges. It won’t shock me to see Republican-appointed justices vote against DOMA’s constitutionality, but the DOMA case presents a federal issue under the full faith and credit clause, which is distinct from the “original intent” issues.
Do you have any reason to believe that Governor Romney, who has pledged to appoint “original intent” justices and judges, won’t keep his word, particularly since his word was given in writing?
I am at a loss, Stephen.
You point out that judges appointed by President Reagan and President Bush I before marriage equality became an issue before the courts (the first ruling in favor of marriage equality was Hawaii in 1993, a year after Reagan-Bush came to an end) have ruled with the majority, and then say “that’s no guarantee that Romney-appointed judges won’t be hard-core social conservatives”. Well, of course not.
How could anyone think that the appointments of President Reagan and President Bush I 20-plus years ago could be a indication, much less a “guarantee”, that President-Presumptive Romney, who has pledged to do the opposite, will do do what Reagan-Bush did?
I just a don’t follow your thinking. Romney is no Reagan. Romney isn’t even a Bush I.
posted by Mark F. on
The court ruled that the Federal government has to recognize all valid marriages. As Tom points out, the issue of whether there is a general right to same sex marriage was not addressed by the court.
posted by John Howard on
But INS only recognizes “bona fide” marriages, it isn’t enough to have a legal state marriage.
posted by gus on
The Supreme Court decided in Loving v. Virginia in 1967. A Gallup poll a year later in 1968 showed that only 20 percent of Americans approved interracial marriage.
There is a big difference between approving of something and being opposed to outlawing it; far fewer than half of all Americans “approve” of same-sex marriage, but around half don’t want to make these marriages illegal.
Despite some of the nitpicking above, Miller is correct that advocating for a Supreme Court ruling that would require states to recognize same-sex marriage (as many activists wish, whether or not this particular case would be that vehicle), would create a fierce political backlash — worse than the decades of culture war over abortion. If states had been able to proceed on their own, increasingly legalizing abortion on a state by state level without the backlash over Roe v. Wade, abortion would be much less of an issue today.
posted by Houndentenor on
I think we are mostly in agreement.
There is no other logical way the court could rule. If a state issues a marriage license, the federal government has no constitutional authority to ignore it. (Whether or not other states will honor it is a separate issue.)
I also agree that this needs to proceed state by state, at least for the time being. I do see the point of those who would like for SCOTUS just to rule in favor of gay marriage but 1) I don’t see this court doing that and 2) doing so would produce a backlash which would probably lead to a Federal anti-gay constitutional amendment which would be far worse than letting this proceed slowly until this is not such a contentious issue.
posted by Mark F. on
I wouldn’t worry about a “Marriage Amendment.” No way it would get either get 2/3 rds of Congress or 3/4 ths of the states. The bar to pass a Constitutional Amendment is very, very high.
posted by Houndentenor on
I hope you’re right. But it worries me that these state constitutional amendments keep passing.
posted by Tom Scharbach on
Miller is correct that advocating for a Supreme Court ruling that would require states to recognize same-sex marriage (as many activists wish, whether or not this particular case would be that vehicle), would create a fierce political backlash — worse than the decades of culture war over abortion.
I think that the backlash analysis is wrong.
The “backlash” analysis, more or less a constant on IGF since 2005, has not proven out. Public opinion has grown steadily toward acceptance of marriage equality for a couple of decades now, and the polling trend line is more-or-less a flat line, despite the predicted “backlash” at each step in the push for marriage equality.
The only exception — the only point where the opinion trend deviated from the flat line — was in 2004-2005, when public acceptance numbers dipped for two years.
The “backlash” analysis attributes that to the Massachusetts decision. I would argue, to the contrary, that the drop in public acceptance was largely created by a full-court political press for anti-marriage amendments as part of the Rove-Bush election strategy.
The “backlash” analysis would have us believe that the anti-marriage amendments were indigenous, and the Republican Party entirely innocent in the matter. All credible evidence points in the other direction. The flames of fear were fanned, and fanned hard by cynical political operatives.
The anti-marriage amendments did set us back, gave credibility to the anti-marriage forces, and took the matter out of the hands of 31 states, precluding legislative action or state court decisions in those states. So, ultimately, the matter will be decided in those states by the federal courts under the federal constitution.
Eventually, SCOTUS will have to issue a nationwide decision. I predict that the decision will come between 2018 and 2022.
Will the decision create a “backlash”? I don’t doubt it. Maggie & Company will explode, calling for a constitutional amendment to impose Sharia law, if not something even less rational.
But it won’t lead to the FMA or anything else. By the time SCOTUS decides, the issues will have been litigated in numerous federal jurisdictions over the course of a decade, and public opinion will have moved well beyond 50-50 in our favor.
The SCOTUS decision will be accepted, just as Loving was.
posted by Clayton on
Tom, I admire your optimism, and I hope you’re right. In the long term, may we achieve equality. In the short term, however, I see a all kinds of unintended negative consequences. If the federal government is recognizing all legal marriages while states get to pick and choose, people like my husband and me (who were legally married in Canada but who live in Louisiana) are going to have a lot of our rights cherry-picked by the state government. For instance, we will be able to file going federal tax returns, but will have to file separate state tax returns; I will qualify for survivor benefits for his Social Security, but he won’t qualify for survivor benefits for my pension (I work for the state and don’t pay into SS); we will be counted as spouses for immigration purposes, but not for purposes of health insurance; when one of us dies, the federal government will treat us as married for estate purposes, but a homophobic judge may decide to overrule the will and allow a “real” family member to inherit the property. Perhaps some of these complications and negative consequences will help lead to an eventual nation-wide recognition of marriage equality, but that could take another generation, and since I’m 55, I don’t particularly relish the possibility that I’ll spend my last 25 years being Federalism’s guinea pig.
posted by Tom Scharbach on
Perhaps some of these complications and negative consequences will help lead to an eventual nation-wide recognition of marriage equality, but that could take another generation, and since I’m 55, I don’t particularly relish the possibility that I’ll spend my last 25 years being Federalism’s guinea pig.
I share your impatience.
I’m 65 and my partner 62. Wisconsin has a “nuclear option” anti-marriage amendment (prohibiting marriage and civil unions), and Wisconsin law imposes a criminal penalty ($10,000 fine) if we marry out of state, although the law has not been enforced to my knowledge. At my age, the chances that my partner and I will ever be able to marry aren’t high.
But I know of no way to hurry up the process.
Marriage has traditionally been a reserved power, and I believe that an attempt by Congress to federalize marriage would be found unconstitutional by SCOTUS, and SCOTUS would be on solid constitutional ground ruling against Congress in that instance.
So that brings us to amending the constitutional to federalize marriage. The chance that a constitutional amendment federalizing marriage would succeed before the state-by-state strategy succeeds is minimal, and not worth the effort, it seems to me.
So we are where we are — working state by state to achieve marriage equality legislatively as the opportunity presents itself, with a parallel state by state court strategy, building the legal case for a SCOTUS ruling that will bring marriage equality nationwide, most likely in the 2018-2022 range. At the outside, I think that the SCOTUS ruling will come no later than 2025.
That’s a long time, but it isn’t forever.
I see things from a long perspective, I guess. I’ve been in this fight for my entire adult lifetime, and I would not have imagined, as recently as 25 years ago, that we would even be talking about marriage equality in my lifetime.
What I will never understand is why supposedly “pro-equality” conservatives remain out of the fight. The Republican Party does not have to be a anti-equality agent — I mean, God didn’t put it in stone or anything — but pro-equality conservatives keep supporting and voting for anti-equality Republican politicians, eliminating any pressure for change within the Republican Party and impeding the progress toward equality, year after year. And then, to top it off, pro-equality conservatives who vote anti-equality are puzzled why the rest of us think that they have their heads up their hinders.
posted by Throbert McGee on
“Make them illegal” as in constitutionally banning government recognition of same-sex marriage, or “make them illegal” as in reinstating anti-sodomy laws and arresting gay couples?
Remember that there were two significant SCOTUS cases that struck down laws against interracial couples — a few years before the Loving v. Virginia case on marriage, the McLaughlin v. Florida decision decriminalized mixed-race “fornication”. (Or rather, I guess, laws that penalized mixed-race fornication but NOT same-race fornication were ruled unconstitutional.)
posted by Jorge on
I must find time to read this decision someday.
posted by mike on
Hi, this is squan,I started The American Rainbow Mobile Museum to show the great accomplished of all americansThe Goal of The American Rainbow Mobile Museum is to(EDUCATE)and inlighted our children of the gratness of this country,and the contribution that all Americans regardless of race creed our sexual orentation has given to Americas greatness.Together we will make a difference.
Teaching our youth that we are all Americans,that we as a nation own our greatness to our diverse cultural mix.Asian,Black, European,Indian,Latino, Middle Eastern,and the alternative american, all people of the world can be found here in America and they have all contributed to Americas excellence.
The Rainbow Mobile Museum will also teach are youth about recycling,and ways of caring for mother earth,we will also have a program were by we will help the elderly and bring or youth and or elderly together on different projects.I don’t know how to let the gay community know about the museum and I find many organization will back my mobile museum if I would be willing to leave the gay community out,I refuses to do this, can you tell me were I can get the gay community to help in showing there history.www.americanrainbowmobile.com hubb1929@gmail.com all shows our free.squan.
posted by Mark on
To say this post is puzzling puts it mildly.
As Tom S. points out, there’s absolutely no reason to believe that a candidate who’s signed NOM’s pledge–and whose judges likely will have to be confirmed by a Republican Senate–will not use opposition to marriage equality as a litmus test in all judicial appointments. No one, to my knowledge, has claimed that Reagan or HW Bush had such a litmus test; if they had one, Justices Kennedy and Souter never would have made it to the Supreme Court.
Second, support for marriage equality has now become the default position of the Democratic Party–especially after Obama’s change of heart has triggered a substantial movement among black voters. Since 2004, the Democrats have opposed a federal marriage amendment. Exactly how, then, could any “backlash” persuade the 20-25% of congressional Democrats who would be necessary to vote to send a constitutional amendment to the states? And what of all the (unnamed) pro-gay federal Republican candidates Stephen keeps telling us we need to support? Surely these unidentified pro-gay Republican members of Congress wouldn’t support a marriage discrimination amendment, would they?
While it seems exceedingly unlikely the Supreme Court will vote to legalize marriage equality, it’s hard to see how such a vote could be anything but positive, since without such a vote it’s going to be decades before gay families in many states have the protection of full equality.
posted by mik on
I want the word to know of all the great,accomplishments of the gay american our as I prefer to say,the Alternative American. The Goal of The American Rainbow Mobile Museum is to educate and in lighted our children of the greatness of this country,and the contribution that all Americans regardless of race creed our sexual orientation has given to Americas greatness.
Teaching our youth that we are all Americans,that we as a nation own our greatness to our diverse cultural mix.Asian,Black, European,Indian,Latino, Middle Eastern,Gays,all people of the world can be found here in America and they have all contributed to Americas excellence.I have many company’s willing to back my museum,if I would only eliminate the gay history,but I will not,all people have value,and all have given to the greatness of our country.The gay child should be able to see what all people have given and to be proud of who they our.Can you help me get the word out about the Rainbow Museum
The Rainbow Mobile Museum will also teach are youth about recycling,and ways of caring for mother earth,we will also have a program were by we will help the elderly and bring or youth and or elderly.All shows can be customize to your desired needs.Please feel free to ask or show coordinator to assemble a presentation that best meets your needs.
Did You Know
THE CONTRIBUTIONS OF THE ALTERNATIVE AMERICAN
To appreciate the contributions von Steuben (1730-94) made to the American Revolution, consider this: Before his arrival in Valley Forge in 1778, the Revolutionary Army had lost several battles to Great Britain and, without him, the United States of America might still be the British colonies.
Before Valley Forge, the Revolutionary Army was a loosely organized, rag-tag band of men with little military training. The military fumbled through the beginning of the war for independence lacking training and organization. Gen. George Washington and the Continental Congress knew that without help from additional seasoned military experts, the colonies would clearly lose. Since Washington himself was the best the colonies had, they looked to Europe for someone who could train the troops. To that end, Washington wrote the colonies’ representative in Paris, Benjamin Franklin, to see what he could come up with. Franklin, a renowned inventor, was treated as a celebrity in the French court. This would be pivotal in achieving his two major objectives in France: winning financial support for the revolution and finding military leaders who could bring a semblance of order to the Revolutionary Army.
Franklin learned of a “brilliant” Prussian military genius, Lt. Gen. Baron Frederich von Steuben. Von Steuben had a string of successes (some self-embellished) with the Prussian army. There was one problem. He’d been asked to depart because of his “affections for members of his own sex.” This became urgent in 1777 when he literally escaped imprisonment in what is now Germany and traveled to Paris. In Paris, Franklin was interviewing candidates to assist Washington back in the colonies when he discovered von Steuben.
To make a long story short.Franklin, working with Deane, decided von Steuben’s “affections” were less important than what he, Washington and the colonies needed to win the war with England. If George Washington was the father of the nation, then von Steuben, a gay man, was the father of the United States military.
THE AMERICAN ALTERNATIVE INVENTOR
Lynn Conway (born January 10, 1938) is an American computer scientist, electrical engineer, inventor, trans woman, and activist for the transgender community.
Conway is notable for a number of pioneering achievements, including the Mead & Conway revolution in VLSI design, which incubated an emerging electronic design automation industry. She worked at IBM in the 1960s and is credited with the invention of generalised dynamic instruction handling, a key advance used in out-of-order execution, used by most modern computer processors to improve performance.
.Walt Whitman, best known as the father of modern poetry and American poetry, was also the longtime lover of Peter Doyle, son of a blacksmith, a former Rebel soldier who worked as a streetcar conductor. They were often affectionate in public; both their families, and all Whitman’s friends, knew about their relationship. Doyle was a conspicuous influence on many of Whitman’s works.Benjamin Banneker known as the First African American Man of Science,without Banneker our nation capital would not exist as we known it.During The Revolutionary war,wheat grown on a farm designed by Banneker help save the fledgling U.S.Troops from starving.www.americanrainbowmobile.com