Based on States’ Records, Supreme Court Should Decide Marriage

In eight days the U.S. Supreme Court will hear oral arguments in the appeal from the 6th Circuit ruling that upheld animus inspired anti-gay marriage bans.  Fifteen attorneys general and their counterpart in the District of Columbia have filed an amicus brief arguing that the Court must strike down such bans and point to the abysmal failure of too many of the states in protecting the rights of minorities as why, despite the calls for "states' rights" - a euphemism for allowing discrimination - the Court must act to stop bigotry and grant equality under the law.  The Washington Post looks at the filing.  Here are highlights:

First by statute and then by amending the commonwealth’s constitution, Virginia forbade same-sex marriage, civil unions, adoptions by gay parents, and, just to be perfectly clear, the creation or recognition of any “union, partnership or other legal status to which is assigned the rights, benefits, obligations, qualities or effects of marriage.”

Both states [Virginia and Maryland] now have liberal Democratic attorneys general. And as the Supreme Court considers whether the Constitution requires states to allow gay couples to marry, both lawyers are aggressively arguing that the history of their states show why the matter cannot be left to the democratic process.

Maryland Attorney General Brian E. Frosh, elected last fall, released a report this month concluding that “the states have sometimes been poor custodians of the rights of minorities.” It surveyed the political experiences of jurisdictions with laws prohibiting and permitting gay marriages.

“It is clear that the deference traditionally accorded to states with respect to the institution of marriage is not proper when in so many states the democratic process leading to these bans has been compromised by animus, fear, prejudice, and hate,” the report said.

The Supreme Court on April 28 will consider whether the Constitution forbids states to limit marriage to a man and a woman and whether states are required to recognize same-sex marriages performed where they are legal.

Four federal appeals courts have answered those questions affirmatively. But the U.S. Court of Appeals for the 6th Circuit upheld the restrictions in the four states for which it is responsible: Michigan, Ohio, Kentucky and Tennessee.

Maryland has joined 15 states and the District of Columbia in an amicus brief asking the court to find the restrictions unconstitutional. But Frosh said the lawyers in his department wanted to do more to flesh out the arguments used in the brief.

“There hasn’t been a review of different state laws that clearly shows animus played a role in their passage,” Frosh said in an interview. “The lawyers in the office were passionate about it; they wanted to make a statement on marriage equality.”

In Virginia, opponents of same-sex marriage say the democratic process was hijacked. Attorney General Mark R. Herring has drawn widespread criticism and threats of impeachment since he announced in early 2014 that he believed Virginia’s restrictions were unconstitutional and that he would work to overturn them.

[Herring] said, Virginia has been on the wrong side of history in previous landmark Supreme Court cases: opposing desegregation in Brown v. Board of Education; defending its ban on interracial marriage in Loving v. Virginia; trying to retain Virginia Military Institute’s exclusion of female cadets in United States v. Virginia.  “The arguments offered to defend those unjust laws are the same arguments offered by marriage equality opponents today,” Herring wrote.

[C]ouples are allowed to marry in Virginia only because the U.S. Court of Appeals for the 4th Circuit struck down the commonwealth’s restrictions in 2014, and the Supreme Court declined to review it.
 

An adverse ruling would have consequences, Herring told the court. Since that decision in October through January of this year, he reported, 1,289 gay couples married, and “same-sex weddings account for between 6% and 8% of all marriages celebrated in Virginia.”

Religious based animus does not magically make a discriminatory law constitutional.  Let's hope five or more of the justices agree.