Nel's New Day

April 30, 2015

LGBT Community Waits for Marriage Equality Ruling

tevin“I’ve been given a great life,” Tevin Johnson-Campion told HuffPo‘s Josh Zepps. “My parents have always been there for me, and just for someone to sit there and say that we’re less deserving, I definitely feel like that’s offensive,” Johnson-Campion continued about his two fathers, plaintiffs in the marriage equality law suit, Obergefell v. Hodges, that the Supreme Court heard on April 28. (Follow Johnson-Campion’s journey toward marriage quality with his two fathers at his blog.)

The marriage equality case is named after the lead plaintiff, James Obergefell, who was not allowed to have his name listed on his husband’s Ohio death certificate. The court’s job in this case is to answer two questions: do states have to issue marriage licenses to same-sex couples, and do states have to recognize same-sex marriages performed in another state?

Opponents to same-sex marriages need to maintain that they have no ill will toward LGBT people to avoid heightened scrutiny. John Bursch, lawyer against marriage equality, failed that test when he said that heterosexual parents would more likely abandon their children if society felt that marriage is just about love. He ignored the four special-needs children of the Michigan plaintiffs who cannot be adopted by both their parents because the women cannot be married. Anthony Kennedy told Bursch, “I think the argument cuts quite against you.”

john_j_bursch_0When Bursch claimed that the banning marriage equality doesn’t discriminate based on sexual orientation, Elena Kagan answered, “If you prevent people from wearing yarmulkes, you know, that’s discrimination against Jews.”

Bursch got into deeper trouble with the swing justices, Kennedy and John Roberts, when he tried the argument that allowing marriage between two people who cannot procreate together leads to more children born out of wedlock and the “reasonable voter” to ban same-sex marriage. “The state doesn’t have an interest in love and emotion at all,” Bursch said. “It’s about binding children to their biological moms and dads.” He went so far as to say that marriage was never intended to be “dignitary [sic] bestowing.” Kennedy disagreed in amazement, saying that he thought this was the entire point of marriage.

same sex marriage drawingAfter a debate on whether couples should be asked if they wanted children before they were permitted to marry, Ruth Bader Ginsberg, 82, told Bursch, “Suppose a couple, 70-year-old couple, comes in and they want to get married? You don’t have to ask [the 70-year-old couple] any questions. You know they are not going to have any children.”

To the absurd argument that marriage equality would weaken the institution, Ginsberg responded:

“All of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”

As Roberts and Kennedy fretted about rushing into marriage equality, Ginsburg gave a great tutorial:

“Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that state should [still] be allowed to have? To cling to marriage the way it once was?”

Bursch said, “No.”

Roberts suggested that LGBT people should keep on persuading people to accept marriage equality and not bother the court. He said:

“I mean, closing of debate can close minds, and it will have a consequence on how this new institution is, is accepted.  People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

By now, over 60 percent of the people have accepted same-sex marriage compared to the mere 20 percent who approved of interracial marriages when Loving v. Virginia made interracial marriage the law of the land.

Defending the nonrecognition laws was Tennessee Associate Solicitor General Joseph Whalen who rapidly found himself in trouble when he tried to defend the practice of not accepting marriages of same-sex couples who wed in other states. Stephen Breyer noted that Washington, D.C., allows federal judges to marry people but New York does not. He asked, “So if I marry two people in Washington, D.C., and they happen to move to New York, you are saying that New York doesn’t have to recognize that marriage?” When Whalen said yes, Breyer replied, “I think there are a few people going to get nervous about this.”

Whalen dug his hole deeper by trying to draw a difference between a judgment and a law after Sonia Sotomayor said that a divorce is a legal judgment. Ginsburg added, “It is odd, isn’t it, that a divorce does become the decree for the nation … but not the act of marriage.”

Samuel Alito asked about a compromise that would allow states to ban gay marriages while at the same time recognizing such marriages performed out of state. One might wonder if he is considering this position.

Roberts appears to search for a way to control his court if Kennedy votes with the progressive justices. He said:

“I’m not sure it’s necessary to get into sexual orientation to revolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Using this rationale wins the battle for marriage equality because the enemy retreats. That decision gives LGBT people no constitutional protections beyond those connected with marriage. It’s also dishonest because the discrimination has been based on sexual orientation and gender identity, not the person’s sex.

Why now? And why are we the ones who should make the decision? That seemed to be the position of the four conservative justices and sometimes Kennedy. Lawyer Donald Verrilli gave the justices the legal reason to the questions why now and why them.

“What these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now, and it is emphatically the duty of this Court, in this case … to decide what the Fourteenth Amendment requires.”

The time is now because the plaintiffs came to court, asking for rights for themselves and their children, and the Supreme Court justices are the ones because they represent the law.

The people who think there is no discrimination against LGBT people need to consider the difficulties that just the plaintiffs—only a few same-sex couples—have endured because they cannot be married: no death certificate, no ability to adopt partner’s children, limited parental rights (health care, visitation, etc., etc.), no “interstate travel” with partner’s adopted children, no family health care, no co-ownership of their home without costs for legal contortions, social stigma for children, no adoption for foster children, higher income and estate taxes, more restrict time off work for family care, no medical power of attorney, no Social Security benefits or inheritance rights, and no divorce. It’s more than a yarmulke.

How could the court rule?

It could require states to recognize marriage equality without affirming equal protection by not listing LGBT people among classes of people granted legal protection from discrimination.

It could water down the legal standard necessary to prove discrimination in court.

It could take a state’s rights position and leave everything up to the states.

It could take the Alito compromise by requiring states to recognize same-sex marriage without performing them within the states.

Until the court delivers its decision, probably at the end of June, people will continue to protest—like these people.


  1. Is that fey little boy in the bow tie seriously their attorney?


    Comment by Lee Lynch — May 1, 2015 @ 12:59 AM | Reply

  2. This is a GREAT rundown of the situation, Nel. Nice job!

    Based on the decisions made in the lower courts, I believe SCOTUS will rule favorably for LGBT people. I know it’s hard to say what’ll happen, and sometimes the justices shock me one way or another. But remember that Ginsburg, Sotomeyer, and Kagan are very liberal and socially conscious. Breyer is the one true moderate. Alito, Thomas, and Scalia are so backwards on social issues (particularly for rights of minorities) that it’s scary. Kennedy and/or Roberts often end up being the swing votes (or sometimes Breyer) to get a 5-4 decision.

    My prediction (for what it’s worth) is that we’ll get a 6-3 decision with the three conservatives (Alito, Thomas, and Scalia) voting their 15th Century consciences and providing amazingly irrational dissents and the other six affirming love, life, and fairness.. OR—it could be 5-4 if Roberts decides to be a dork. I think we can at least count on the three wonderful women plus Breyer and Kennedy to carry the day.

    It would also be interesting (and unwelcome and problematic) if the court somehow found a way to cast this issue in terms of Federal vs. States rights – and then decided that states could choose. That would beg the question and cause all kinds of continued unrest and discrimination. I don’t think it’ll happen that way based on the extremely reasoned opinions of the lower federal courts who have almost unanimously ushered in a new era of gay marriage. But you never know. If SCOTUS did do this, I would be so disappointed. I really don’t believe they will, though.

    The points that you mention – the comments the justices made and questions they asked – tend to be quite telling. Some of them have a tendency to play devil’s advocate at times, but in this case, I didn’t discern a lot of that. The fact that they expect to have a decision so soon is great. It means that the justices have already considered a lot of the issues and are ready to duke it out and settle it once and for all (or at least for the time being). I have a lot of hope!

    Anyone want to start a pool to decide who’ll write the majority decision? I would like to place my bet for Ginsberg!


    Comment by Lori L. Lake — April 30, 2015 @ 8:20 PM | Reply

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