I keep wanting to use this blog to deal with weighty philosophical, religious and political matters – the arguments of Alvin Plantinga which have just gotten a spate of publicity, the research of T. M. Luhrmann, the re-eruption of Italy’s ongoing political crisis. But the accelerating drive toward Marriage Equality keeps diverting my attention; and on Valentine’s Day, of all days, one can hardly complain.

As I mentioned yesterday, the newly elected Attorney General of Virginia had declared that he wouldn’t defend the state’s same-sex marriage ban in the litigation underway there. Well, the other shoe has dropped, the case has been decided, and the Commonwealth of Virginia can now claim to live up to its motto referenced in the title of this post. (Interestingly, it appears that the motto was adopted not long after the Supreme Court overruled the state’s ban on interracial marriage in the coincidentally named Loving case. I’ve no idea whether this was done deliberately or even consciously.)

The strength of the tide in favor of Equality is evidenced in these figures: over 150 million Americans – close to a majority – now live in states where same-sex marriages are legal or recognized; and adding the states with civil unions that are as marriage-like as possible brings the total to a clear majority. (From Chris Bowers https://twitter.com/ThisBowers?original_referer=https%3A%2F%2Ftwitter.com%2F&tw_i=434177698802307073&tw_p=tweetembed)

This of course assumes that the most recent Federal court decisions survive appeal. And if they do, as they are grounded firmly on the Equal Protection clause of the Federal Constitution, it is hard to see how the result will be other than to compel recognition of same-sex marriage in all states. And in any case the pressure of evolving public opinion upon the political process seems likely to lead to a similar result somewhere down the line. A few years ago Indiana began the process of amending the state constitution to ban same-sex marriages and civil unions as well; the proposal was supposed to go to a referendum this year, but in the meanwhile it became obvious that it wouldn’t pass unless it were amended to allow civil unions; this means another legislative session will have to approve the amended version before the referendum can be held, and by then who knows?

On a more negative note, in part of Georgia Valentine’s day has been postponed due to weather. Can’t win them all.

 

 

 

Since my last post there have been several developments in the struggle for marriage equailty. First a federal district court in Oklahoma ruled against that state’s ban on same-sex marriage; this decision has been stayed pending appeal. Like the one in Utah, it seems to be based directly on the Equal Protection clause of the Federal Constitution, so that it cannot be upheld without affecting the whole country.

Then the new Attorney General of Virginia declared that he wouldn’t defend the state’s ban in the litigation underway there. This not only seems likely to add another state to the Equal Marriage column, it also indicates growing public acceptance of the concept, being the voice of an elected official rather than a politically unaccountable judge.

And now Kentucky. The case there didn’t directly address the state’s right to refuse to perform same-sex marriage, merely demanded recognition of such marriages legally performed elsewhere. The judge properly limited himself to this issue, but dealt with it in terms which strongly imply that if called upon, he would invalidate the ban altogether: no religious, traditional or personal moral belief can without some further showing trump the Equal Protection Clause, and no such further showing has been found to be valid. If this manages to stand, even without there being a broader ruling at a higher level, it at least invalidates that part of the federal DOMA which was left in place by SCOTUS, the part exempting the states from the usual comity requirement.

It looks more and more like endgame…

Endgame?

December 21, 2013

I was going to post some seasonal reflections yesterday or today, with just a passing note of congratulation to New Mexico for becoming (as I had anticipated) the 17th state with marriage equality. Then I saw the news that Utah of all places suddenly leapt into place as 18th.

http://news.yahoo.com/gay-couples-wed-utah-judge-overturns-ban-001651193.html

http://www.nytimes.com/2013/12/21/us/utahs-gay-marriage-ban-is-ruled-unconstitutional.html?_r=0

Much of the coverage of this surprising development centers on the fact that Utah is the home state (and is mostly populated by members) of the Church of Jesus Christ of Latter-Day Saints, aka Mormons, whose opposition to same-sex marriage led them to spend prodigious amounts of money to support Proposition 8 in California a few years back. In addition, the state had adopted its own constitutional amendment to the same effect. (New Mexico on the other hand was the only state where the marriage law simply said nothing about gender, because until a couple of decades or so no one thought it necessary…)

But to me the striking thing is that for the first time to my knowledge a federal district court stated explicitly, and made it the basic legal grounds for a decision (the “law of the case” as they say), that equal marriage is itself absolutely required by the federal constitution. Previous court rulings had been based on equal protection clauses in the constitutions of the various states, which is why they were in some cases overturned by state constitutional amendments such as Proposition 8. The only way to reverse such an amendment, short of a ruling like the one in Utah, is for the state to enact a new counter-amendment, as I think  was done recently in one or two states. But invocation of the federal constitution trumps anything a state can do. No court had quite taken this step to date, because of the ramifications: if the federal constitution mandates marriage equality, it mandates it everywhere, in all states. End of all DOMAs at any level, once and for all. So such a decision will certainly be appealed and almost certainly be heard by the Supreme Court.

The district court that overruled Proposition 8 delicately stopped short of this, settling for a rather tenuous argument based on the fact that California had already recognized marriage equality, and the act of taking it back once it had been granted was what triggered special scrutiny. It is unclear whether this would have survived a proper appeal; what destroyed Prop 8 was the decision by Governor Brown and the Attorney General of the state not to back the appeal, leaving only a question of standing for higher courts to deal with summarily and with no precedential value.

Now, that cat is out of the bag. The State of Utah will appeal, and if it loses, that’s the end. Equal Marriage for all.

If it wins, the struggle continues…

 

 

- and Corporate Personhood! All wrapped up in one tidy case which the Supreme Court has agreed to hear. It’s gotten a fair amount of publicity by now – the famous Hobby Lobby case, in which a corporation with religious owners demands that its (their?) freedom of conscience should allow them to defy the ACA’s mandate to include contraceptive coverage in its (their?) employees’ insurance package.

I’d like to write about it at length but there are other things I have to get out of the way before the holiday, so just a few words: In my view, even if it can be argued that under Citizens United a corporation, being a person, can be said to have a conscience – for let us grant that the logical consequences of an absurd premise are likely to be equally absurd – I don’t accept that any employer’s religious freedom should allow them to infringe on the personal freedom of their employees. If you are required by law or contract to pay someone something, it is their conscience and not yours that should dictate how they spend it. You can’t object to your landlord’s spending the rent money you pay on a lifestyle you consider immoral; the health coverage you owe your workers should be treated the same way.

One of the reasons the Court agreed to hear this, by the way, seems to be a conflict of circuits; a companion case involving a Mennonite furnitare company has been taken up also, and in the two cases the Court of Appeals reached opposite decisions. Which reminds me of a thought I had the other day – if the employers win in this case, does that mean that if we ever return to compulsory military service, the Mennonites will be able to demand conscientious objector status for all their workers (whether they want it or not)???

Another recent court case, which my clergy friends are naturally concerned about, involves the constitutionality of the tax exemption allowed for their housing allowances. When I have time I will write something wrapping up all of these issues into an overall discussion of how to understand the religion clauses of the First Amendment. Stay tuned!

Rights in Collision?

November 20, 2013

I have mentioned a couple of times that a marriage equality case has been percolating through the courts of New Mexico. This state is said to be the only one left to have no law of any kind either allowing same-sex marriage or prohibiting it – no legislation,no constitutional provision, no judicial decree; so a number of county clerks have taken matters into their own hands and issued licenses to same-sex couples, and have been upheld by local courts. An appeal against these decisions has been argued before the state Supreme Court, which is expected to rule on it sometime in the near future.

Meanwhile, as I learned from this article in yesterday’s New York Times, for 10 years New Mexico has had a law prohibiting discrimination on the basis of orientation, and a few months ago the above-mentioned Court upheld that law in the case of  a wedding photographer who claimed her religion would not let her accept the job of photographing a same-sex commitment ceremony (one with all the trappings of a wedding). Her argument was based not only on the state’s religious freedom act, which the Court held inapplicable because the State was not a party to the action, but on freedom of speech – photography being an art form, therefore involving an expressive element such that she felt that applying the law to her would in effect compel her to make a statement she did not agree with. Rather like the people who object to New Hampshire’s “Live Free or Die” license plates. The Court held, sensibly in my opinion, that no one would construe a commercially produced wedding album (or commitment ceremony album)  as expressing the personal opinion of the photographer. She was asked to document the event, not to approve it. Still, the question was worth raising and considering seriously; it is not impossible that someday a line may be crossed in the direction of “compulsory speech,” though I don’t think it was crossed in this case. (Another set of cases involving similar free-speech arguments is that involving the increasingly gory warning labels cigarette makers and the like are being required to put on their products…)

There’s a fine discussion of the case here. It commends the opinion of Judge Bosson, also cited in the Times article, which concurs in the result but expresses some sympathy for the appellant’s position.

The fact that this decision was unanimous bodes well, I think, for the equal marriage case in the pipeline, though the law is a subtle thing and it would be rash to venture a firm prediction…

As you may have noticed, my passion for liberal causes such as Equal Marriage is matched, even sometimes maybe eclipsed, by my fascination with political and religious history, legal reasoning, and the like. I support Equal Marriage however it comes about, but I also love going into the precise details of how it comes about in each jurisdiction.

So what caught my attention in the news about the recent win in Hawaii was this: it was reported all along that the state already had a court decision mandating equal marriage 10 years before Massachusetts, but this was overturned by a state constitutional amendment before it could go into effect. Now how could the mere statute which was just enacted overturn the amendment? Well, what I found out today is that unlike many states which have amended their constitution to directly define marriage as between a man and a woman, the Hawaii amendment – approved by a 70% majority in a 1998 referendum – was much more modest; it only permitted the legislature to define marriage in such a way. Which the legislature promptly did. In effect, the 1998 amendment merely carved out an exception to the state’s equal protection clause, preventing the court from reaffirming its previous ruling.

Why did the Traditional Marriage camp not go farther, as in so many other states?  One possibility is that they felt that the more modest amendment was the most they could get away with, given the state’s generally liberal climate. But it may just be that they didn’t think that more was needed. In those days, so long ago, it seemed that the only way Equal Marriage could come about was by a court ruling. An elected legislature would never do such a thing. The Trads presented themselves as populists - let the people vote, they said, let their representatives vote, Equal Marriage was just a symptom of judicial dictatorship, the product of unaccountable ivory-tower judges losing touch with real American values. Our side said “we don’t vote on rights,” a slogan I confess I never liked much, as if there were some a priori way to determine without voting on them just what our rights are.

That was 15 years ago.

Since then several legislatures have enacted Equal Marriage; voters in several states have approved it in referenda. Here in Massachusetts, the Trads were unable to get even 25% of the legislature to vote put an anti-equality amendment on the referendum ballot. Most of us on the Equal Marriage side would still rather not have to go through expensive and divisive political campaigns on the issue, but at least, when we have to, we can feel we have a good and growing chance of victory.

Congratulations New Jersey!

October 21, 2013

I support Marriage Equality and would be happy no matter how it came about – in New Mexico it seems to be percolating up from the county level – but I find the legal reasoning involved in the New Jersey decision especially interesting. As I suspected, the overruling of the Federal sections of DOMA has totally undercut the position of those Americans who’ve been on the fence, hoping to give same sex couples “equal rights” without the word “marriage.” New Jersey had civil unions which were required, by a 2006 decision of the state Supreme Court, to convey the same benefits as marriages. Now the courts might have chosen to apply this in a conservative manner, meaning only something like “benefits within the power of the State to give,” but instead they took a more pragmatic view: Federal benefits are an important part of what it means to be married in today’s world, and with a whole batch of them now being offered to same-sex couples as long as they have the “married” label, there is no way civil unions can be considered equal.

We’ll see how other “civil union” states react. Meanwhile there’s apparently going to be a statewide decision soon in New Mexico… And eventually there are going to be cases where same-sex couples from equal-marriage states move to other places and exercise Federal rights alongside of neighbors who don’t have them… Legal complications never end, which I guess is why there’s always a market for lawyers…

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