The Incompetence of Anti-Gay GOP Legislators

I have noted a the 1996 U.S. Supreme Court case in Romer v. Evans in a number of posts in the wake of North Carolina's foul HB2 and Mississippi's even more heinous HB1523.   Why?  Because Romer struck down a Colorado constitutional amendment that sought to do more or less exactly what these two animus motivated statutes do: made LGBT citizens a targeted class that would be deprived of non-discrimination protections.  The statutes go even farther, however.  They set one set of religious belief up as the preferred and protected belief enforced against all citizens, something the establishment clause of the First Amendment of the United States Constitution prohibits.  Why would Republican legislators be oblivious to these brick walls that are facing their legislative handiwork?  In my view there are at least two reasons: (1) their sole interest is in prostituting themselves to the Christofascists to boost the turn out of knuckle dragging Bible thumpers, and (2) many of these legislators are less than bright.  Given the current base of the GOP, ignorance is celebrated and there is a growing sense among Christofascist (who tend to control primaries) that they are above the law.  The result has been a lowering of the caliber and intelligence of elected Republicans.  A piece in Think Progress looks at the idiocy and incompetence of Mississippi Republicans which by extension applies to all of those - including those in Virginia - who are pushing license to discriminate laws.  Here are highlights:

Here’s a pro tip: if you’re going to enact a law intended to enable discrimination, you might want to make at least some minimal effort not to emulate other laws the Supreme Court has already struck down.

And yet, the lawmakers behind Mississippi’s HB 1523, legislation permitting a broad range of discrimination against LGBT people in that state, violated one of the cardinal rules of drafting discriminatory laws — don’t be so flamboyant about it!

Before the mid-1990s, the Supreme Court largely ignored — or even actively shut down — cases brought by parties alleging anti-gay discrimination. That changed with the Court’s 1996 decision in Romer v. Evans, which struck down a Colorado constitutional amendment that singled out gay men, lesbians and bisexuals for inferior treatment under the law. Labeled as a ban on “Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation,” the amendment forbade any arm of Colorado government from extending civil rights protections “whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.”

The primary sin of this amendment, as Justice Anthony Kennedy explained for the Court, was that it made gay people and bisexuals into a kind of underclass who were not even permitted to seek out civil rights protections through the ordinary political process. “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres,” Kennedy wrote. “The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

“Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Kennedy added. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

Which brings us back to HB 1523. The Mississippi law, like the Colorado amendment, explicitly singles out LGBT people “for disfavored legal status.” The law begins with a declaration that “the sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that . . . marriage is or should be recognized as the union of one man and one woman” and that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth” (additionally, the law also purports to give special rights to people who object to extramarital sex of all kinds). Though dressed up somewhat in the rhetoric of religious liberty, this declaration is about as explicit a statement as Mississippi could have mustered expressing animus towards LGBT individuals. It specifically identifies same-sex couples and trans people as the “solitary class” disabled by the law.

LGBT rights cases has moved almost entirely in one direction since Romer. That fact, combined with HB 1523’s explicit language identifying it as an unambiguous permission slip to engage in discrimination, will likely be enough to shut the law down once it starts to limit the rights of LGBT people in that state.  

Have North Carolina Republicans Set the Stage for a Huge LGBT Victory?

The United States Supreme Court has long danced around the issue of whether or not sexual orientation (and gender identity) comprise a class of individuals entitled to the application of the "strict scrutiny" standard when anti-LGBT laws are challenged.  The closest the Court has ever come to a definitive answer was in the 1990's case of Romer v. Evans.  Sadly, while reaching the right result, the Court dodged addressing the strict scrutiny question.  Now, North Carolina's new anti-LGBT law may have set the stage for the Court to finally address the question head on.  If the North Carolina statute is ultimately struck down, North Carolina Republicans may find much to their chagrin - and the rage of the Christofascists to whom they have prostituted themselves - that they set the stage for a major LGBT rights ruling.  A column in the Washington Post looks at the situation and the possible outcomes.  Here are excerpts:

What happened in North Carolina may have been startling for its swiftness, but it was a classic countermove in the modern conflict over gay rights. When liberal cities enact laws to protect LGBT people, conservative state governments respond by preempting them.

North Carolina is now the third state in the last five years to ban local anti-discrimination ordinances after a city tried to protect LGBT people. This is a maneuver of questionable constitutionality.

“They jammed this through with virtually no notice,” says Shannon Minter, legal director of the National Center for Lesbian Rights. “Everything about this process stinks. It’s got all the hallmarks of a bill that’s based on animus.”

Arkansas lawmakers passed a similar law last year, after the city of Fayetteville sought to prohibit bosses, landlords, and shopkeepers from discriminating against LGBT people in a bill that was rescinded soon after. Tennessee’s legislature also passed a law in 2011, after Nashville and Davidson County cut ties with businesses that discriminated against LGBT workers.

Though North Carolina’s law goes the furthest — it limits what bathrooms transgender people can use — what these three measures have in common is that they were all engineered to test the limits of what the U.S. Constitution allows. The 14th Amendment promises equal protection under the law, meaning that governments can’t single out and punish groups of people for no good reason. But the Supreme Court has been consistently vague about what that promise means for LGBT people.

This latest controversy may finally clear some things up.  On Monday, the ACLU, Lambda Legal, and Equality North Carolina filed a lawsuit arguing that North Carolina's new law “violates the most basic guarantees of equal treatment and the U.S. Constitution." Legal experts say this will be a tough case to litigate, but if it proceeds, it has the potential to set a landmark precedent. It may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the Constitution actually imply about gay rights?

These anti-anti-discrimination laws share a famous common ancestor. In 1992, voters in Colorado approved a constitutional amendment prohibiting any agency, school district, or local government from protecting “homosexual, lesbian or bisexual” people. This invalidated the LGBT anti-discrimination ordinances in Denver, Aspen and Boulder. Those cities promptly sued the state, arguing that the measure violated the Equal Protection clause of the 14th Amendment.

That lawsuit, known as Romer v. Evans, reached the Supreme Court in late 1995 and resulted in a landmark victory for gay rights the next year. But everything happened in a very strange way.

When laws discriminate against certain kinds of people, though, the courts become much more suspicious. Lawyers often speak of a three-tiered system. At the top are categories like race, national origin or religion. Laws that explicitly discriminate against race are practically impossible to justify and hardly ever survive judicial review. Even laws that do not mention race can be struck down if it can be proven that they were enacted with discriminatory intent.

To a lesser extent, the courts are also wary of laws that discriminate by sex. This middle tier of review is called “intermediate” or “heightened” scrutiny, and it’s a relatively recent development. In 1976, the Supreme Court struck down an Oklahoma law that allowed young women but not young men to buy certain kinds of weak beer. Oklahoma tried argue that young men were more likely to drive drunk, so they shouldn’t be allowed to buy beer until they were 21. But the court didn’t find that reason convincing enough for the law to stand.

For everyone else, courts use the extremely lenient “rational basis” standard. Practically speaking, nearly any law can clear this low bar. In the words of New York University constitutional law professor Kenji Yoshino, this is essentially “a free pass for legislation.”

Laws that discriminate against sexual orientation tend to be judged at this lowest level of scrutiny. Courts generally don’t believe that gays and lesbians are a class of people who deserve special protection under the Constitution. For these reasons, it’s extremely hard to win a case just by saying that a law is unfair to LGBT people.

Except that’s exactly what happened in 1996, when the Supreme Court struck down Colorado’s anti-LGBT law in Romer v. Evans.

Civil rights groups had been hoping the court would recognize that sexual minorities, like racial or religious minorities, deserved extra protection under the Constitution beyond rational basis review. But the Supreme Court refused to elevate LGBT people. Instead, Justice Anthony Kennedy said that Colorado’s law failed even the flimsy rational basis standard.

Recent legal victories for gay rights have danced around this issue. In Lawrence v. Texas, the Supreme Court struck down anti-sodomy laws not because they discriminated against gay people, but because these laws intruded on the “realm of personal liberty.”

“The petitioners are entitled to respect for their private lives,” Kennedy wrote in the majority opinion. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

In the gay marriage cases, United States v. Windsor and Obergefell v. Hodges, the court used hybrid reasoning that blended a number of concepts in the Constitution, among them the rights to liberty and equal protection under the law. But again, the opinions fell short of recognizing sexual orientation as a suspect class. Obergefell in particular has been criticized by legal scholars for being muddy and confusing.

In Romer v. Evans, the Supreme Court made a big deal over how Colorado had singled out gay people, by name, in a piece of legislation. But the language of the Tennessee law is completely neutral — essentially, it freezes discrimination law until the state says otherwise. In practice, of course, the law closes the door on LGBT people, who were starting to win anti-discrimination protections in some liberal Tennessee cities.

Civil rights groups hoped that courts would see through the subterfuge in the Tennessee law. They argued that the measure was clearly motivated by anti-gay animus, violating the Constitution’s Equal Protection clause. But a lawsuit against Tennessee failed; in 2014, an appeal court dismissed it on a technicality, ruling that the plaintiffs couldn’t prove they suffered any harm from the new law.

The big question remained unanswered. Would the Supreme Court finish what it started in Romer v. Evans?

The lawsuit in North Carolina urges courts to finally treat gender identity and sexual orientation as suspect or quasi-suspect classifications under the Equal Protection clause. This has long been a goal in the gay rights community. It would mean that politicians could no longer pass laws that target LGBT people without some serious explaining.

There are other claims in the lawsuit as well. The transgender bathroom provisions in North Carolina’s law may run afoul of Title IX, the federal law that prohibits sex discrimination in schools. According to the Department of Education’s interpretation of the law, Title IX also bans transgender discrimination, which the DOE considers a form of sex discrimination.

North Carolina’s new law is an evolved cousin of Colorado’s law. Both were created to stymie local LGBT protections, but Colorado’s law singled out gay people by name, while North Carolina’s is more coy. So if the Supreme Court wants to strike down North Carolina’s law for disadvantaging gay people, it will have to use more firepower than it did in Romer v. Evans. It may finally have to come out and say what it has been hinting at for years.

If gender identity and sexual orientation became recognized as a protected classes, deserving of heightened judicial scrutiny, the repercussions would be enormous. Not only would it inflame the struggle between religious rights and gay rights, but it would call into question many of the anti-LGBT bills being considered around the nation.

The North Carolina lawsuit has a long road ahead of it. But it has the makings of a milestone case. If it ever reaches the Supreme Court, it will force the justices to tackle an issue that they have repeatedly hemmed and hawed over.

The court has ruled that bans on sodomy are unconstitutional. It has ruled that bans on same-sex marriage are unconstitutional, too. But is it constitutional for a law to discriminate against LGBT people? The Supreme Court has been mysterious on that subject for a very long time.

Special Session Bill Would Ban ALL LGBT Rights In North Carolina

Anti-Gay Lt. Gov. Dan Forest (R)

As ISIS engages in terror attacks and mass murder, North Carolina Republicans are set to commit their own version of religious terrorism. As WSOCTV  and the Charlotte Observer are reporting, the Republican controlled North Carolina legislature is about to consider a bill that would not only rescind the City of Charlotte's recently passed pro-LGBT ordinance, but outlaw LGBT rights state wide.  The move sounds very similar to what was attempted in Colorado and struck down as unconstitutional by the U. S. Supreme Court in Romer v. Evans.  But then, one can never accuse today's Republicans ever learning from the past, especially if their batshitery will excite the Christofascists in the party base.   Here are story highlights:

Proposed legislation for Wednesday’s unusual special General Assembly session wasn’t released publicly Tuesday, but legislative leaders indicate the bill could go well beyond a Charlotte ordinance on transgender bathroom use.

Lt. Gov. Dan Forest posted a formal proclamation calling for the special session Tuesday afternoon. It says the legislature will meet starting at 10 a.m. to consider proposals “to provide for single-sex multiple occupancy bathroom and changing facilities and to create statewide consistency in regulation of employment and public accommodations.”

The proclamation was the first mention of employment regulations in reference to plans for the special session. Forest and House Speaker Tim Moore signed the proclamation.

Andy Munn, a spokesman for Moore, declined to provide a copy of the draft legislation and said it probably wouldn’t be made public until Wednesday – hours before it comes to a first vote. “There are still a few tweaks to be made to it,” he said.

Munn wouldn’t provide details of the proposal under consideration.  House Minority Leader Larry Hall, a Durham Democrat, called on Moore to release the bill so legislators can consider what they’ll be voting on Wednesday.

The Associated Press reported that it obtained a copy of one draft of the bill. That draft, according to The AP, “would appear to pre-empt completely what Charlotte added to its non-discrimination ordinance and prevent local governments from passing similar acts.”

Lobbyist Theresa Kostrzewa also obtained a draft version and posted sections of it on Twitter. One potential provision would ban cities and counties from regulating employment practices, including setting a higher minimum wage. Another would prevent counties from requiring government contractors to uphold specific employment practices.

The N.C. League of Municipalities and the Metropolitan Mayors Coalition said they could not comment on possible curbs to local government control until the bill is introduced.

The special session is in response to the Charlotte City Council’s recent vote to expand protections for gay, lesbian, bisexual and transgender people, including a provision that will allow transgender people to use the restroom and locker room facilities of the gender with which they identify. The ordinance goes into effect April 1.

Governors typically call special sessions, but Gov. Pat McCrory refused to call Wednesday’s session because he was concerned the legislature would go beyond addressing the Charlotte ordinance.

That meant legislative leaders opted for a rarely used law that allows special sessions when three-fifths of legislators in both chambers support the call. That provision in the state constitution hasn’t been used since 1981, according to Forest’s chief of staff, Hal Weatherman.

In the Senate, 31 Republicans backed the session. Only three GOP senators didn’t: Sen. Tom Apodaca of Hendersonville, Sen. Tamara Barringer of Cary and Sen. Fletcher Hartsell of Concord. All House Republicans except Rep. Charles Jeter of Mecklenburg County and Rep. Chuck McGrady of Hendersonville backed the call to session.

The Supreme Court and Anti-Gay Animus

In its ruling in United States v. Windsor, one issue that went toward prompting the majority on the Court to strike down the portion of the Defense of Marriage Act was the documentation from the Congressional Record and elsewhere that the moving motivation behind the the enactment of DOMA was anti-gay animus.  The Court has held on a number of occasions, including Romer v. Evans in the early 1990's,  that animus towards a group in society does not make an unconstitutional law magically past constitutional muster.  With the Court to hear oral argument next month in the marriage cases out of the 6th Circuit, a brief has been filed by the Mattachine Society of Washington, D.C., that seeks to document the long history of anti-gay animus that has motivated laws limiting the civil rights of LGBT citizens.  A piece in Huffington Post looks at the brief and the ugly history that it sets forth.  Here are highlights:

In April the U.S. Supreme Court will hear arguments on the constitutionality of state laws that ban same-sex couples from getting married. The historic case has attracted a wide array of amicus briefs; People for the American Way Foundation joined religious and civil rights groups on a brief urging the court to reject discriminatory marriage bans and challenging "religious liberty" arguments opposing marriage equality.

One fascinating brief was filed by the Mattachine Society of Washington, D.C. . . . . The Mattachine Society's project is about preserving the historical record, but it also has an important legal purpose, which is demonstrating that anti-equality laws and regulations have long been grounded in hostility, or animus, which is not a permissible justification for discrimination. Chief Justice John Roberts' dissent from the Supreme Court decision in Windsor, which overturned the key section of the Defense of Marriage Act, demonstrates the importance of this archival work. Roberts suggested there is insufficient evidence -- he waved it away as "snippets of legislative history" -- to demonstrate that DOMA's purpose was to "codify malice." Added Roberts, "I would not tar the political branches with the brush of bigotry." 

There's no escaping the brush of bigotry, the reeking stench of bigotry, exposed by the Mattachine Society's brief, which links to more than 35 historical documents that demonstrate the ways that the Civil Service Commission, often in partnership with J. Edgar Hoover's FBI and other law enforcement agencies, investigated people suspected of sexual "perversion" and robbed them of their federal jobs and careers. 

From the amicus:

For decades, both federal and state governments targeted and persecuted homosexuals, individuals suspected of being homosexual, and even those believed to have engaged in homosexual acts, regardless of actual sexual orientation. The stated rationale shifted over time -- from concerns about national security to code words, such as "suitability" -- but the point was always the same: government officials, federal and state, high and low, felt a complete revulsion toward homosexuals and wanted to purge the country of even the hint of homosexuality. 

Animus, therefore, was a culture. And with that culture came a language. For decades, government officials referred to homosexuality in official, often highly confidential or privileged communications, as "unnatural," "uniquely nasty," "immoral," "deviant," "pervert[ed]," and an "abomination."

The federal government also worked in concert with anti-gay activities being carried out at the state level. One of the documents uncovered by Mattachine's Freedom of Information Act requests is a 1963 note from Civil Service Commission General Counsel L. V. Malloy to Charley Johns, the chairman of the Florida Legislative Investigation Committee on Homosexuality and Citizenship. 

The Mattachine Society brief ends with an appeal to the Supreme Court's history of addressing anti-gay animus:

For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: "homo," "sexual deviant," "pervert," "abomination," "uniquely nasty," and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans.. . . .

It was the courts -- and in the case of Dew, this Court -- that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. See, e.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality.

 In a nation that claims to have religious freedom for all, no one should have their CIVIL rights limited merely because they do not conform to Christofascists beliefs and sensibilities.  No one.

Arkansas' New Unconstitutional Anti-Gay Law

Arkansas is out to prove that Virginia and Alabama are not the only states controlled by GOP legislatures that ignore the fact that federal law - and U.S. Supreme Court rulings - ALWAYS trump state law.  How else to explain Arkansas' passage of a bill that bars localities from enacting anti-discrimination laws that protect gays from being fired or refused accommodations simply because they are gay?  The law is much like the one passed in Colorado in 1992 which led to the ruling in Romer v. Evans which struck down the animus motivated Colorado measure.   Frankly, it is all part and parcel with the Christofascists' increasing belief that they are above the laws that govern the rest of us and/or that they are entitled to special rights.  A piece in The Daily Beast looks at the work of the Arkansas Christofascists and their political whores in the Arkansas GOP.  Here are excerpts:

Social conservatives are losing the moral battle on LGBT equality—but they’re not giving up without a fight.

More specifically, they’re starting to look like cornered animals, lashing out with everything they’ve got. We’ve already seen Alabama Chief Justice Roy Moore pull a Governor Wallace and order probate judges to disobey a federal court order. And this week, Kansas Governor Sam Brownback abruptly stripped LGBT state employees of nondiscrimination protection.

The latest entry in conservative anti-gay desperation? Arkansas, which just banned any city in the Natural State from protecting its LGBT residents from discrimination. (The legislature passed the bill Friday, and Gov. Asa Hutchinson has announced that he will neither veto nor sign the bill, but allow it to become law without his signature.)

Not only can you now be fired from your job for being gay, turned away from a hotel because you’re gay, and barred from visiting your sick spouse in the hospital because you’re gay—now, even if the enlightened city of Fayetteville (whose nondiscrimination ordinance sparked the effort) wanted to help you, they can’t.

If Arkansas’ new bill sounds familiar, it’s because it is. Back in 1992, Colorado did something very similar. Outraged that liberal enclaves Aspen and Boulder had passed measures protecting gays from discrimination, the state’s citizens passed Amendment 2, prohibiting any state or municipal agency from protecting gays from discrimination.

You may also remember that this is unconstitutional. In the 1996 case of Romer v. Evans, the Supreme Court held that Amendment 2 was unconstitutional, since there was no basis for it other than animus against gay people.

Well aware that Amendment-2-style actions are unconstitutional, the Arkansas bill cleverly bans local governments from extending civil rights protection to “any class not covered in state law.” Paraphrasing Mayor Quimby here, “that could be any protected class that we don’t like.” Not just homosexuals.

The trouble for Arkansas is that there’s now a huge legislative record that shows that, drafting notwithstanding, this bill is about LGBT people. All the statements, pro and con, show that. 

Even in Romer itself, the Court noted various anti-gay statements on the part of Amendment 2’s backers, which comprised some of the evidence that Amendment 2 was motivated by anti-gay animus.

Nor would the case for “uniformity” really fly either. Arkansas, like all states, has all kinds of laws that vary from place to place.

Like the Brownback Rollback [in Kansas], Arkansas’s “Don’t Save Gays” law is an act of desperation. It plays to the hard right base, and if it’s ultimately a losing battle, that resonates with conservative evangelicals’ martyr complex, and their widely-held apocalyptic belief that America is going to hell in a big gay handbasket.

Marriage Bans are About Anti-Gay Animus

I have not studied all of the legislative and campaign history behind the gay marriage bans enacted in Kentucky, Michigan, Ohio, and Tennessee, but if they are anything like what happened in Virginia before passage of the vile Marshall-Newman Amendment or what transpired in Congress before passage of DOMA, the effort was all about anti-gay animus and the desire of Christofascists to permanently denigrate gays and to make us forever inferior under the law.  "Protecting the sanctity of  marriage" had little to do with the real agenda.  This anti-gay animus was analyzed by the Supreme Court in the Windsor ruling and in Virginia, the foul anti-gay rhetoric of Bob Marshall and Ken Cuccinelli helped document the animus behind the Marshall-Newman Amendment.  Now, with the Court taking the appeal from the 6th Circuit, animus will again be prominent in the Court's focus.  A piece at SCOTUS Blog lays out why these marriage bans are all about animus.  Here are excerpts:

Were the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012, including four the Court decided Friday to review, the products of constitutionally repugnant “animus” – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike?  Or, do they represent, as Judge Jeffrey Sutton maintained in the opinion for the Sixth Circuit that is now before the Court, a benign, even admirable, initiative by “people of good faith,” endowed with a “Burkean sense of caution,” to validate a “long-existing, widely held social norm”?  Who are we, Judge Sutton asked, to “indict” millions of voters who supported these mini-DOMAs?

The question of animus will be prominent – perhaps pivotal – in this final phase of marriage litigation.  So far, the arguments made by plaintiffs have been remarkably sterile, emphasizing formal equal protection and due process arguments and failing to say much about how the mini-DOMAs actually came into being.  But such a picture is incomplete.  To fully consider the constitutionality of the remaining anti-marriage laws, we must lift up these proverbial rocks to see what was festering underneath them.

When evidence of gratuitous or irrational intent to harm a group outweighs a law’s purported legitimate justifications, the law betrays an improper purpose and violates equal protection.  As the late Chief Justice William Rehnquist observed in Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was “motivated by a desire to discriminate.”

The Court has demonstrated time again – in Underwood, as well as cases like Mount Healthy City School District Board of Education v. Doyle, Village of Arlington Heights v. Metropolitan Housing Development Corp., Personnel Administrator of Massachusetts v. Feeney, and Romer v. Evans – that in a purpose inquiry, history, circumstances, and objective evidence (both direct and inferential) about the enactors’ intent all matter. 


First, look at the record.  Spend a few minutes browsing news databases for coverage of the mini-DOMA campaigns and it confirms what you knew but may have forgotten: the campaigns were substantially characterized by negative code words, moral judgment, and disparagement (often implicit, sometimes explicit) of gays’ dignity.

A few weeks before Ohioans voted on their mini-DOMA, the Columbus Dispatch reported that Ohio’s secretary of state was “standing by remarks he made comparing same-sex couples with barnyard animals.”  (Judge Sutton apparently missed that report.) . . . . we can find plenty of animus propelling these initiatives if we’re simply willing to see it.

Then, look at the data.  Data from the American National Election Survey on attitudes toward various groups, known as a “feeling thermometer,” show that for much of the period when the mini-DOMAs were debated, Americans had quite frigid feelings toward homosexuals. 

Remember, this was wedge-issue politics.  Anyone who paid even modest attention to politics over the past twenty years knows that gay marriage was, until recently, one of the conservative movement’s most potent wedge issues to mobilize its base and drive up turnout.
Wedge issues are rarely helpful to “earnest and profound debate,” but they are kissing cousins with animus.  Politicians count on voters to react to wedge issues emotionally and reflexively, not with calm nuance and reason.

Query why mini-DOMAs go farther than necessary.  It is one thing for a state to reserve marriage licenses for heterosexuals.  It is another thing, as I have written, to claim to void or nullify marriages created by other states.  Almost all the mini-DOMAs do this, even for long-married couples who are migrating to a different state and did not evade their home state’s marriage laws.

The nearly universal principle of reciprocal state marriage recognition, according to a leading conflict of laws treatise, “provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state.”  To impose such “hideous” burdens on a legally married couple is cruel.  But millions of Americans nonetheless decided it was acceptable to do that to gays and lesbians.

Moreover, if the amendments were simply intended to preserve a traditional definition of marriage, it was unnecessary to also prohibit, as most of them did, civil unions, domestic partnerships, or (in the words of the Michigan amendment) any “similar union for any purpose.”  These amendments permanently barred gays from seeking even some lesser forms of legal recognition for their relationships.  If voters knew what they were doing, then it is difficult to imagine a reasonable, non-animus-based explanation for such overreaching.

Finally, probe the frivolous justifications.  If the mini-DOMAs collectively stand for more than knee-jerk moral judgments by voters, whipped up by activists with their own agenda, then the states now defending them should be able to offer more substantial justifications than the fanciful and logic-defying idea – notably pulverized by Richard Posner, a jurist who took the argument seriously enough to actually think about it – that banning gay marriage somehow channels more children into mom-and-dad households and promotes “responsible procreation” by heterosexuals.  This argument, in one form or another, is pretty much the only substantive purpose that states have offered in post-Windsor marriage litigation.

[A]s a solid body of equal protection jurisprudence has demonstrated, they are often the tip-off that something more unsavory – animus, perhaps? – was actually at work.

GOP on Arizona Anti-Gay Law: Make It Go Away

For years now the Republican Party at both the national and state level has been gleefully prostituting itself to Christofascists and theocrats and injecting foul and toxic religious belief into the civil laws.  Here in Virginia the Republican Party of Virginia has become little more than the legislative arm of The Family Foundation, a Christofascist hate group.  And for too long these political prostitutes in the GOP have gotten away with pushing religious based laws that make a mockery of the U. S. Constitution's guarantee of religious freedom for all citizens, not just Christofascists and Christian extremist.  In some ways Arizona's "turn the gays away" bill was a logical extension of what has been long occurring with GOP facilitation.  That the Arizona law has ignited a fire storm and an uprising by the business community has been nothing short of delicious to watch.  Indeed, the fall out has caused similar bills in Georgia and Indiana to get pulled or put on possible permanent by GOP sponsors.  Now, many Republicans want the Arizona bill to simply go away and have joined the chorus calling on Arizona Governor Jan Brewer to veto the bill.  Politico looks at the growing GOP stampede to see the bill killed.  Here are highlights:

As Republican Arizona Gov. Jan Brewer weighs whether to sign a bill that would allow businesses to deny services to gay customers, top national Republicans just want the issue to go away.

Proponents of the legislation — which Brewer has until Saturday to sign or veto and is reportedly leaning against — say the bill is designed to protect religious liberty. But many Washington Republicans see it as a political loser, giving the left another cudgel to attack conservatives as intolerant while motivating liberals and younger voters ahead of the midterm elections. It also threatens to widen the chasm between social conservatives and GOP operatives, who have become increasingly public in their support for gay marriage.

“There are lots of economic and fiscal issues that people care pretty deeply about. I think those are good issues for us to focus on,” Sen. John Thune (R-S.D.) said Tuesday when asked about the bill, SB 1062. “We’ll stay focused on Obamacare. Those are the issues we want to talk about.”

The state’s Republican senators, Jeff Flake and John McCain, are prodding the governor to veto the bill on financial grounds, warning that boycotts of Arizona could do untold economic damage to the state. They even worried about losing next year’s Super Bowl.

“I know that the entire business community is galvanized, in a way that I’ve never seen, against this legislation,” said McCain.  “I hope she moves quickly,” Flake said. “I just don’t see any reason to wait.”

Still, the legislation puts other elected Republicans in a touchy spot, not wanting to antagonize social conservatives who oppose same-sex marriage or force business owners to go against their conscience.

A Republican strategist active in congressional races said the bill will most likely be a nonfactor in the midterms if Brewer vetoes it. Boycott threats and strong opposition from the business community in Arizona could deter other states from taking up similar legislation.

“If it becomes law, it will be a big issue,” the person said. “All indications are that she’s likely to veto it, and if she does … eight months from now, it’s pretty much ancient history.”

If Brewer signs the legislation, the major concern of party strategists is that opponents would launch an effort to overturn it. A referendum in November would allow the debate about whether denying services to gays is discriminatory to simmer through November, drawing global attention and increasing turnout among younger, liberal voters. This could complicate GOP hopes of holding the open governorship and picking up targeted House seats.

Republican consultant Steve Schmidt, a supporter of gay marriage rights who was McCain’s senior strategist on his 2008 presidential campaign, called the bill a political mess.  “It makes the party of Lincoln and Reagan look small, closed and intolerant and exacerbates our political differences with every single demographic group in America that is growing,” he said.

Mike Murphy, another prominent GOP strategist, said the bill makes holding the party’s 2016 convention in Phoenix “a terrible idea.”

 

Being shameless whores to ignorance embracing hate-filled Christofascists can carry a price - as the GOP is finding out in spades.  The perverse side of me hopes Brewer signs the bill and that the ensuing shit storm causes the GOP nothing but problems until the law is struck down as unconstitutional under the precedent of Romer v. Evans.

 

Justice Anthony Kennedy: A Surprising Friend to Gay Rights

Kennedy picture at center

The New York Times has a piece on Justice Anthony Kennedy who has become a pariah in Christofascist circles and a hero in gay rights circles.  That Kennedy would find himself viewed this way is a bit of a surprise if one remembers that he was nominated to the U. S. Supreme Court by Ronald Reagan who conveniently closed his eyes to the AIDS epidemic in its beginning years.  In deed, when appointed, few advocates for gay rights would have expected that Kennedy would go on to author three landmark decisions that have helped propel gay equality, the most recent being the majority opinion in United States v. Windsor - which identified the true motivation behind anti-gay laws, anti-gay animus - and which may yet unleash a whirlwind nationwide against anti-gay laws.  Here are article highlights:

The San Francisco Gay Men’s Chorus sang “Give ’Em Hope” for a revered and in some ways surprising guest who shared a California stage with them last month: Justice Anthony M. Kennedy. 

In remarks from the stage, San Francisco’s mayor, Edwin M. Lee, thanked the justice “for upholding the Constitution and justice for all” in his majority opinion in June in United States v. Windsor, a major gay rights victory. 

“Freedom is always a work in progress,” Justice Kennedy said in his own remarks, making clear that there was more work to be done. 

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement. 

The praise now being showered on Justice Kennedy by gay rights advocates — and the deep disappointment of conservatives — would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then.  

The justice’s trajectory since then has been a product of overlapping factors, associates and observers say. His Supreme Court jurisprudence is characterized by an expansive commitment to individual liberty. He believes that American courts should consider international norms, and foreign courts have expanded gay rights. His politics, reflecting his background as a Sacramento lawyer and lobbyist, tend toward fiscal conservatism and moderate social views. And he has long had gay friends. 

Romer v. Evans, in 1996, struck down a Colorado constitutional amendment that had banned laws protecting gay men and lesbians. Lawrence v. Texas, in 2003, struck down laws making gay sex a crime. And in June, Justice Kennedy wrote the Windsor decision. 

In 1987, gay rights advocates could see little of this coming.

In 1986, a month after the Supreme Court upheld a Georgia law that made gay sex a crime in Bowers v. Hardwick, Judge Kennedy, not yet a justice, gave a speech at Stanford expressing reservations about the ruling. He contrasted it to a 1981 decision from the European Court of Human Rights striking down a similar law in Northern Ireland. 

Seventeen years later, Justice Kennedy cited the European court’s decision in his majority opinion in Lawrence v. Texas, which overruled Bowers.  “Its continuance as precedent demeans the lives of homosexual persons,” Justice Kennedy wrote.

These days, Professor Dorf said, there is more praise than criticism, and Justice Kennedy has joined a select group.  “What Earl Warren was to civil rights and what Ruth Bader Ginsburg was to women’s rights,” he said, “Kennedy is to gay rights.”

How Will John Roberts Rule on Gay-Marriage Cases?

With challenges to the constitutionality of the Defense of Marriage Act ("DOMA") headed to the U. S. Supreme Court now headed to the U. S. Supreme Court, it is only natural that speculation about how Chief Justice John Roberts will rule on marriage equality and DOMA's blatant discrimination against gays and lesbians.  Especially since Roberts is currently a pariah among many in the Kool-Aid drinking GOP base because of his vote on what the loons derisively call Obamacare."  In the event Roberts ends up voting to strike down DOMA, it's a pretty safe bet that some in the anti-gay hate groups that masquerade as "family values" organization may well have an aneurysm.  In a piece in The New Yorker, Richard Socarides ponders how John Roberts may vote on DOMA and/or Proposition 8.  Here are highlights:

Often the first question the lawyers Ted Olson and David Boies get when they talk about their effort to overturn California’s anti-gay Proposition 8 is this: Are there five votes on the Supreme Court for their case?

After the customary and cautionary language about never being able to predict the Supreme Court’s result, Olson and Boies often answer the question by going a step further. They say that they are not giving up on any of the Justices. Boies then tells a joke—he says that he and Olson have a deal: Olson will be responsible for getting the votes he got in Bush v. Gore, and Boies will be responsible for the ones he got. Everybody laughs. (One example is here.) So does the Supreme Court’s health-care ruling make the joke more or less funny for conservatives?

There are two big gay-rights cases heading for the Court. (I’ve posted about them.) In addition to the Olson-Boies Proposition 8 case, there is the Massachusetts case known as Gill v. Office of Personnel Management, which challenges the constitutionality of the federal Defense of Marriage Act (DOMA).  .   .   .   the Justice Department also asked the Court to consider the Gill case and another DOMA case, Golinski v. O.P.M., even before it was decided by the Ninth Circuit. The Court will certainly take the Marriage Act case and decide it during its next term. But I also think they will not resist the temptation to take the Proposition 8 case, even though they may later agree to handle it narrowly.

The Court will not have much flexibility in the DOMA cases. There is only one question presented: Is DOMA constitutional? It will have to be answered yes or no. In the Proposition 8 case, there are more options. The Court might restore same-sex marriage rights in California without finding a nationwide constitutionally based right to marriage equality. Even some advocates think that would be the best and most politically sustainable result. But there is little doubt that if the Court rules in favor of gay rights the decision will be significant, perhaps even historic. Most people assume that the fifth and deciding vote belongs to Justice Anthony Kennedy, who wrote the Court’s majority opinions in its two most recent big gay-rights rulings, Romer v. Evans (1996) and Lawrence v. Texas (2003).

Chief Justice John Roberts joined the Court in 2005, two years after Lawrence was decided, after only a short stint on the D.C. Circuit Court of Appeals. None of the gay-rights-related cases that have come before him as a judge give any significant clues as to how he might rule on the weighty constitutional issues he will face next term. Interestingly, as the Los Angeles Times reported in 2005, before he was on the bench he “worked behind the scenes for gay rights activists” in the Romer case who were represented at the time by his law firm, Hogan and Hartson.

But now, in these marquee gay-rights cases facing the Court next term—as American public opinion, especially among young people, shifts rapidly towards greater equality—Roberts may find the very kind of “legacy” issues around which he has shown a willingness to break with his more conservatives colleagues. Put another way, these cases will help define what freedom and equality look like in America, perhaps for decades. Will Roberts want to be on the losing side of history?

Olson, writing in Time about the health-care ruling  .   .  .  .  has been hypothesizing for some time that the influences on Chief Justice Roberts in the health-care case might also lead him to rule in favor of the rights of gay Americans to full equality, including marriage.

Fundamentally, we see that Roberts thinks of himself not just as another Justice of the Court but as its Chief Justice and, as such, as the primary keeper of its legacy.   .   .   .   If they decide against the rights of gay people next term, within a decade or so this issue is going to be right back before the Court and Justice Roberts will likely still be Chief.   .   .   .   .   If he rules against gay rights now, how is Roberts going to feel about the overturning of this precedent later—or having it overturned while he is still on the Court as Chief? That’s not to say public opinion is the only factor here. But the Supreme Court has previously held that marriage is a fundamental right, and sexual orientation, especially when viewed from today’s perspective, meets all the requirements for heightened constitutional scrutiny.

It’s never an issue of the Court looking to public opinion for the result—but they do look to the direction the country is headed, and at its normative values, to see if the result will be accepted by the governed. This is the gay-rights moment, just as the sixties was the civil-rights moment (although there are places, like the South, where public opinion is contrary, as it was in those landmark civil-rights cases).

The question is whether a decade or more from now Chief Justice Roberts really wants to be leading a Court that embodies the last vestiges of anti-gay discrimination in the country, even as fewer and fewer Americans oppose equality. A ruling in favor of gay equality is possible, perhaps even likely, with or without the swing vote of Justice Kennedy. After the health-care decision, Ted Olson’s belief that he can get John Roberts’s vote for same-sex marriage is no joke.

Not addressed in the column is the speculation by at least some in Washington, D. C. (I'm not going to name names at this point) - which I have heard personally - that Roberts have significant reasons to be gay friendly.  Again, should Roberts end up supporting marriage equality, the conniption fits on the far right will be most entertaining to watch to say the least.  It would certainly be beyond pleasing to see a GOP appointee vote against the Bible beaters and their puppets in the GOP.

Gay Marriage - Looking for Time Bombs and Tea Leaves

There are always some among the Supreme Court watcher set who look for any and all clues as to secret agendas of the Court or individual justices. They do just about everything short of sacrificing animals and then reading the entrails. As an attorney with a special concern for gay rights issues, I admit that I typically read significant U.S. Supreme Court opinions as well as significant state supreme Court opinions (e.g., the Iowa ruling striking down bans on gay marriage in that state). Now some are reading signs into the recent Hastings Law School opinion that upheld the law school's right to withhold full recognition - and more importantly student activity fund monies - from a Christian legal society that excluded gays. Frankly, I hope that the conjectures are accurate. It is long past time that the Court accept that sexual orientation is not a matter of "conduct" but rather an immutable attribute that cannot be altered. Here are highlights from the New York Times in respect to this effort to "read the tea leaves" based on a one sentence provision:
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The sentence was resolutely bland and nicely hidden in a long Supreme Court decision issued on the last day of the term.
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All it said was this: “Our decisions have declined to distinguish between status and conduct in this context.” But the context mattered. Justice Ruth Bader Ginsburg, writing for the majority, was talking about laws affecting gay men and lesbians.
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Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.
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There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia. “The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.
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“The Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class,” Theodore J. Boutrous Jr. wrote the next day to Chief Judge Vaughn R. Walker of the Federal District Court in San Francisco.
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[I]f the plaintiffs’ reading is correct, Justice Ginsburg’s statement is both a time bomb and a tea leaf that will figure in litigations concerning same-sex marriage on two coasts. Judge Joseph L. Tauro of the Federal District Court in Boston issued two rulings on July 8 striking down part of the federal Defense of Marriage Act of 1996, and Judge Walker is expected to rule soon in the California case.
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The decision in which the statement appeared, Christian Legal Society v. Martinez, considered whether a public law school could deny recognition to a student group that excluded gay men and lesbians. The majority decided the case on narrow grounds that barely acknowledged the clash between anti-discrimination principles and religious freedom.
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Barely, but not entirely. In her brisk aside, Justice Ginsburg put the muscle of a majority decision behind a proposition that had attracted only one vote when the court struck down a Texas law making gay sex a crime in 2003 in Lawrence v. Texas.
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“Texas’s sodomy law is targeted at more than conduct,” Justice Sandra Day O’Connor wrote in a concurrence. “It is instead directed toward gay persons as a class.”
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Obviously, it is impossible to know for certain what the Court may do in future cases, but taken piece by piece, Martinez, Lawrence and Romer v. Evans have built a series of stepping stones
that lead to an ultimate ruling supporting gay marriage and striking down ant-gay state constitutional amendments and DOMA as well.

Cuccinelli Thinks He Can Ignore Supreme Court Precedents

Most of us here in Virginia have figured out by now that Virginia Attorney General Ken "Kookinelli" Cuccinelli is a dangerous, ignorant ass. But Kookinelli seems Hell bent to continue to take his insanity to new levels - now maintaining that Virginia can ignore U. S. Supreme Court decisions that apply 14th Amendment protections to LGBT citizens. Religious extremism combined with Kookinelli's tempestuous love affair with himself - and hearing himself pontificate - may yet cause Kookinelli to cross the line and set himself up for removal from office. The principal question will be how much damage is done to Virginia and its residents - not to mention how much money is needlessly squandered - before this lunatic is gone from office. Think Progress has a story on Kookinelli's latest comments which basically "flip the bird" to the U.S. Supreme Court. Here are some highlights:
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On Friday, Cuccinelli appeared at Boys State, where a high-school student asked him, “How is that not a violation of the equal protection clause of the 14th Amendment?” Cuccinelli responded by suggesting that the amendment was not designed to protect gay people:

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“State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment,” he said.

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“There are judges who think these things ‘evolve,’ is the word they like to use,” Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

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Despite Cuccinelli’s rather arrogant attempts to dismiss legal precedent and impose his own vision of the Constitution on America, the Court has found that laws motivated solely by anti-gay animus are unconstitutional — and Cuccinelli is bound by that case whether “the people who wrote and voted for and passed the 14th Amendment” “contemplated” about gays or not.

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In 1996’s Romer v. Evans the court ruled that a Colorado law called Amendment 2, which rescinded recently anti-discrimination measures, violated the 14th Amendment’s equal protection clause because animus towards a certain group of people does not constitute “a legitimate governmental purpose.”

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“‘[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),” the Court wrote. “Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.

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Given the ongoing rumors that the Cooch has played for the LGBT team in the past and his irrational homophobia (think George Rekers), I cannot help but wonder when he will find himself being outed in much the same manner that ended former Congressman Ed Schrock's political career. If the rumors are true, I cannot wait for some former trick to finaly say, enough is enough. Frankly, it cannot happen too soon in my opinion.

New Yorker: Perry v. Schwazenegger - A Risky Proposal

There has been much discussion, as I have noted before, as to whether or not Perry v. Schwarzenegger should have been brought forward now or at some later date. Perhaps after the retirement of Antonin Scalia. The New Yorker has a lengthy and excellent article on this discussion and when all is said and done, I agree with Ted Olson that it's better to have the current team quarterbacking the issue in federal court than some other litigants with less experienced counsel. Because somewhere, a involving these issues would have been brought and likely brought by less experienced counsel. I would also note that law professors - who seem to be among the loudest naysayers - are not always the best to judge the likelihood of success since many have been in the ivory tower of academia for years and have little real world trial experience. Likewise, for those of us who live in states like Virginia - where gays still lake employment protections even though the majority of Virginians oppose job discrimination - other than through a federal court case striking down the state's "Marriage Amendment" it could be many decades before marriage equality might become a reality. No matter which side of the argument one comes down on, the New Yorker article is a must read. Here are some highlights:

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The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
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Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history.
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He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them.
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If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation.
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Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states—and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)
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Nobody seems to be saying anymore, as some skeptics did initially, that Olson was deliberately setting up the gay-marriage movement for a fall. But doubts remain. William Eskridge, a professor of constitutional law at Yale University, and a prominent advocate of same-sex marriage, says that he is now “even more pessimistic” about the lawsuit’s chances, given that, in recent months, voters in Maine approved a referendum overturning a same-sex-marriage law, and the state senates of New York and New Jersey opted not to allow gay marriages. “A question that so evenly but intensely divides the country is not one that should be decided by the courts nationwide,”
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Yet there is a countervailing story, one that points to an inevitable shift toward acceptance of same-sex marriage. In 1993, few Americans had heard of same-sex marriage. Now some forty per cent of Americans support marriage for gay couples, and more than fifty per cent support civil unions. Many more people condone gay marriage today than condoned interracial marriage at the time of Loving v. Virginia, when only twenty per cent of Americans told Gallup that they approved of it.
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Patrick Egan, a political scientist at New York University, and Nathaniel Persily, a law professor at Columbia University, who together have studied public opinion on gay rights, believe that in five years a majority of Americans will favor same-sex marriage—the result of generational replacement and what Persily calls “attitude adjustment.” When people change their mind on this issue, they tend to change it toward marriage equality.
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Griffin and Olson agreed that federal lawsuits were inevitably going to be filed on this issue, and that gave them a sense of urgency. As Olson told me, “There are millions of people in this country who would like to be married—in California, in Arkansas, wherever. Some couple is going to go to some lawyer and that lawyer is going to bring the case. And that case could be the case that goes to the Supreme Court. So, if there’s going to be a case, let it be us. Because we will staff it—we’ve got fifteen, twenty lawyers working on this case and we have the resources to do it, and we have the experience in the Supreme Court.” Olson went on, “We’ve all seen people bringing cases in the Supreme Court who don’t know what they’re doing.”
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In San Francisco, Olson and Boies will be arguing that marriage—and, by extension, the right to marry the person you choose—is a fundamental right. The first part isn’t so difficult. Marriage is one of the rights—along with, for instance, the right to vote, to travel from state to state, and to bear children—that the Court has repeatedly elaborated on and endorsed, though they are not stipulated in the Constitution.
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Olson and Boies must also convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights. When the Supreme Court decides if a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: “rational basis,” intermediate, or strict. If the court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. (It was by subjecting laws against interracial marriage to strict scrutiny that the Court ruled, unanimously, in Loving v. Virginia.) Strict scrutiny is applied only when a law either interferes with a fundamental right or deals with a so-called “suspect” classification: religion, race, ethnicity, or national origin.
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If Olson and Boies can convince the Court that the fundamental right of marriage includes the right to marry someone of the same sex, that will get them a long way toward victory.
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If you’re going to deprive citizens of basic rights, even under a rational-basis test, you have to show that it’s of benefit to somebody.” Olson and Boies will aim to show that the motivation for Proposition 8 could only have been animus — a rationale that the Court does not look kindly on. In the 1996 case Romer v. Evans, for instance, it ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.
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So far, Judge Walker, who was appointed to the federal bench in 1989, by George H. W. Bush, has made it clear that he has an eye toward both the high court and history.