What is new on the Gay Marriage front?

[Alnitak]

Some of the religious right will never let it go.
As it is, we are seeing gay jim crow laws being proposed in Kansas, Idaho, South Dakota and elsewhere.

Absolutely, we are seeing a parallel to the Jim Crow backlash that happened after the 14th Amendment and Reconstruction. I would argue that it is a sign of defeat on this issue. They are panicking. These states of course do not have ENDA anyway, but they would forbid such ordinances on the local level that exist in Lawrence, Boise, and elsewhere.

Anyway, at this point it is pretty well established that these types of laws are unconstitutional. One case is already working its way up appellate court in Tennessee. See Howe v. Haslam

I think we are going to see a flurry of gay rights litigation around and post-marriage equality that will eventually lead to heightened scrutiny. The juror and therapy ban issues recently decided by the 9th Circuit are going before the Supreme Court. If they are affirmed, it will be very difficult for Republicans to pass any more of these Jim Crow type laws.

Obviously, it would be preferable for the Supreme Court to hear the juror case immediately and grant us heightened scrutiny this year. Then everything else wouldn't be as much of a fight.

 

[Kulindahr]

Some of the religious right will never let it go.
As it is, we are seeing gay jim crow laws being proposed in Kansas, Idaho, South Dakota and elsewhere.

There's a great teaching opportunity here if 'evangelicals' will listen: Jesus never said to change the world by politics, He said to change hearts by following His example and spreading the Good News. If they'd devoted half the effort to caring for the poor and sick over the last thirty years, they might have made great strides toward actually making this a "Christian nation". Instead, they're in the position of employees hired to do one job who have actually made things worse by doing something else entirely.

 

[JayHawk]

This is what brought me back today. I was hoping to read commentary on what this might mean leaglly.

Justice Department to give married same-sex couples equal protection

Seems to me like another brick in the wall of inequality has been broken free and thrown away. It also seems that Eric Holder took several months to develop the same backbone Chuck Hagel demonstrated when he authorized full rights granted to military members regardless of location. I suppose they had to ensure they had a legal argument first but it did seem to take a damn long time.

Tasty excerpts:

In a new policy memo, the department will spell out the rights of same-sex couples, including the right to decline to give testimony that might incriminate their spouses, even if their marriages are not recognized in the state where the couple lives.

same rights and privileges as inmates in opposite-sex marriages, including visitation by a spouse, escorted trips to attend a spouse’s funeral, correspondence with a spouse, and compassionate release or reduction in sentence based on the incapacitation of an inmate’s spouse.

“We are, right now, in the middle of marking a number of 50-year anniversaries of key milestones in the civil rights movement,” Holder said Saturday night. “And yet, as all-
important as the fight against racial discrimination was then, and remains today, know this: My commitment to confronting discrimination based on sexual orientation or gender identity runs just as deep.”

 

[Alnitak]

This is what brought me back today. I was hoping to read commentary on what this might mean leaglly. [sic]

I honestly thought this was policy already with regards to the Windsor decision. If the Justice Department had refused any of these rights that would have been ripe for a civil rights lawsuit at the DC Circuit. True, the issue in Edith Windsor's case was strictly over estate taxes, but refusing equal protection at this point is acting only under color of law.

 

[Alnitak]

Freedom to Marry Ohio is gaining signatures quickly...

The group pushing to overturn Ohio’s 12-year-old constitutional amendment limiting marriage to a man and a woman says it has 650,000 signatures on a petition to put a gay-marriage measure on the statewide ballot. FreedomOhio’s goal: a million signatures by this summer’s filing deadline for the November election. Only 385,247 valid signatures are needed.

Capitol Insider: Gay-marriage group seeks 1M signatures

 

[Kulindahr]

This is what brought me back today. I was hoping to read commentary on what this might mean leaglly.

Justice Department to give married same-sex couples equal protection

Seems to me like another brick in the wall of inequality has been broken free and thrown away. It also seems that Eric Holder took several months to develop the same backbone Chuck Hagel demonstrated when he authorized full rights granted to military members regardless of location. I suppose they had to ensure they had a legal argument first but it did seem to take a damn long time.

Tasty excerpts:

I suspect the length of time had to do with the extent of the material to be dealt with. There are what, like 16k federal benefits and privileges pertaining to marriage? They'd have to review them all and figure out which have to be honored and how -- quite a task.

 

[Ninja108]

Freedom to Marry Ohio is gaining signatures quickly...

From what I've heard, a lot of people are warning against this.
Let's be blunt, this is a mid term election and I don't see our side turning out in great numbers even though 2010 should have taught them better.

 

[hotatlboi]

From what I've heard, a lot of people are warning against this.
Let's be blunt, this is a mid term election and I don't see our side turning out in great numbers even though 2010 should have taught them better.

The article states that they have not yet decided whether to hold the referendum in 2014 or 2016.

 

[Kulindahr]

From what I've heard, a lot of people are warning against this.
Let's be blunt, this is a mid term election and I don't see our side turning out in great numbers even though 2010 should have taught them better.

Maybe, but if they can hit a million signatures it will have powerful symbolic value.

 

[scream4ever]

If Indiana indeed can keep it off the ballot for this year, then we could shift our resources to Ohio (it could very well be the only active ballot campaign this year, since Oregon may very well have it settled via its pending court case by then). I think we have a strong chance to approve it with a strong campaign (I've already been talking with some of my co-workers from the Minnesota campaign, and we envision it essentially being our campaign 2.0) and a strong GOTV effort. Polls have been showing increasing support too, especially with the clear ballot language read. Also, a lot of the campaign messaging has already begun, considering Ohio is right next door to Indiana (call it a "trickle-in effect).

 

[Kulindahr]

^
I've gotten the feeling from activist types here that they're more interested in fighting for a solid decriminalization of marijuana that allows small businesses to dominate and exclude big corporations -- and all out-of-state corporations than a gay marriage vote, in part because they expect the courts to take care of the matter.

 

[scream4ever]

^^^Very true. And taken care of quickly at that.

 

[Ninja108]

I think the courts will rule in our favor but keep in mind anything can happen between now and then too, including one of the pro justices passing away.
And while I THINK Kennedy will be on our side,one can never be 100% sure.

 

[Alnitak]

I think the courts will rule in our favor but keep in mind anything can happen between now and then too, including one of the pro justices passing away.

Who is the president?

One of the conservatives could go too. Scalia ain't a young chicken.

And while I THINK Kennedy will be on our side,one can never be 100% sure.

I am also concerned about Ginsburg. She seems to have some jitters over a ruling, and for good reason; it will be the biggest social bombshell the Supreme Court has delivered in a generation.

 

[hotatlboi]

I think the courts will rule in our favor but keep in mind anything can happen between now and then too, including one of the pro justices passing away.
And while I THINK Kennedy will be on our side,one can never be 100% sure.

The problem is that Kennedy's opinion in Windsor actually makes a rather strong argument for a federal definition of marriage to not be imposed by the court. Not so sure he's going to want to go the other way on that yet.

 

[Alnitak]

The problem is that Kennedy's opinion in Windsor actually makes a rather strong argument for a federal definition of marriage to not be imposed by the court. Not so sure he's going to want to go the other way on that yet.

The right to same sex marriage wasn't the issue in Windsor.

We don't know Kennedy's opinion on the 14th Amendment because it's never come up. That was the issue in Hollingsworth, which of course was dismissed on a technicality as you well know.

 

[Kulindahr]

The problem is that Kennedy's opinion in Windsor actually makes a rather strong argument for a federal definition of marriage to not be imposed by the court. Not so sure he's going to want to go the other way on that yet.

No federal definition of marriage is involved, merely the same thing that was done before: telling the states that certain definitions are not allowed under the Constitution.

 

[hotatlboi]

The right to same sex marriage wasn't the issue in Windsor.

No but the opinion emphasized great deference to the states right to define marriage. A finding that gay marriage must be allowed so soon after (thus taking it away from the states to decide at least on this issue) is unlikely IMO.

 

[Ninja108]

No but the opinion emphasized great deference to the states right to define marriage. A finding that gay marriage must be allowed so soon after (thus taking it away from the states to decide at least on this issue) is unlikely IMO.

In Scalia's dissent, he points out that if you read the fine print, the ruling goes beyond just states rights. As he pointed out,it's not too hard to apply some of the same logic that was used to strike the federal bans down and use them on the state bans.
We've already seen that happen.
As for Ginsburg, despite her reservations,I just don't see how she will rule to keep these bans in place if the case comes before them.

 

[Alnitak]

No but the opinion emphasized great deference to the states right to define marriage. A finding that gay marriage must be allowed so soon after (thus taking it away from the states to decide at least on this issue) is unlikely IMO.

To say that is their ultimate opinion is incorrect because there was no 14th Amendment argument in Windsor. The court is officially ignorant of it until the issue is brought before them. The majority only gave deference only because 14th Amendment due process and equal protection were not discussed. A lot of people especially on the opposing side don't understand this point, or don't wish to admit it. The 10th Amendment absolutely gives states their rights to regulate family law, so long as no other provision in the Constitution forbids it. I would say the 14th Amendment is a big fat enumerated right, and one retained by the people anyway in the 9th Amendment I would argue, and has been distinguished in Griswold.

Separately, the Supreme Court will not issue an adverse opinion for several reasons. On top of them, California's Proposition 8 would be resurrected, and nobody wants that sore opened up. Two, public opinion is on our side. Three, we will win in several circuits by the time they issue an opinion, and even by October of this year. Four, Kennedy expressed disappointment in his dissent in Hollingsworth and not because he is anti-gay. Every case of government intrusion on LGBT rights that has ever gone before him he has shut down with sweeping rhetoric.