Mexico Supreme Court: Prohibitions on Same Sex Marriage are Unconstitutional in Every State

Mere weeks before the U.S. Supreme Court is to rule on the constitutionality of state bans on same sex marriage, Mexico Supreme Court for the first time has issued an opinion that states that laws prohibiting same-sex couples from marrying are unconstitutional in every state.  The opinion has yet to be released publicly, but the Clerk of the Mexico Supreme Court has written about the ruling in a blog post and indicates the broad application of the opinion.  Do Clarence Thomas and Antonin Scalia want to be more backward than Mexico (no slight intended to Mexico)?  A piece in BuzzFeed looks at this development south of the border which appears to be yet another major defeat for the Roman Catholic Church and its efforts to inflict 13th century knowledge and beliefs on all.  Here are highlights:

The Supreme Court and several lower courts have already ruled in almost every state that same-sex couples have the right to marry under the Mexican constitution. But because of the Mexican court system’s often confusing technicalities, none of those decisions have been binding in future cases. Theoretically, any court could rule against a couple who has sued for the right to marry even though there have been many cases decided in favor of others couples.

That is no longer true. On Wednesday, Mexico’s Supreme Court issued the first blanket statement that laws prohibiting same-sex couples from marrying are unconstitutional in every state — what is known as “generic jurisprudence.” The opinion is not yet public, but Supreme Court clerk Geraldina Gonzalez de la Vega — who worked on one of the early marriage equality suits before joining the court — wrote about the unpublished opinion in a blog post. (Decisions like these are ordinarily published within a week of when they are decided by the court.)

“The law of whatever federal entity that, on the one hand, considers the goal of marriage is procreation and/or defines marriage as celebrating the union of a man and a woman is unconstitutional,” held a Supreme Court panel in response to a suit out of the state of Colima, according to Gonzalez.

It will still take a lot more cases before same-sex couples can marry as easily as straight couples can in Mexico; federal judges must rule five times in each state to create precedent that would lead to full nullification of a local marriage code. And it’s not entirely clear how this process ends, Gonzalez told BuzzFeed News, because this marriage cases still making their way through the legal system are doing so under reforms enacted in 2011 that have never been fully tested.

“We’re playing in a new court,” Gonzalez said.

With South and Central America steadily moving towards marriage equality, the Catholic Church may find that its brand of ignorance and bigotry only has a market in Africa.

There's No Real Case Against Gay Marriage

As we wait for the United States Supreme Court to hand down its ruling in Obergefell v. Hodges, it is worth reiterating that there is no real case against same sex marriage other than religious based ignorance and bigotry (and selective parsing of the Bible).  A piece in Politico looks at the lack of substance to the arguments put forth by the Christofascists in a pathetic attempt to disguise their anti-gay animus.

Marriage equality opponents are having a hard time pointing to any good reason for fencing same-sex couples out of marriage. So the latest move has been to invite the Supreme Court to cast their collective gaze into the future.

Obergefell v. Hodges, the marriage case before the Court, . . . . . Michigan, Ohio, Tennessee and Kentucky want the Court to look into a crystal ball and imagine that a ruling for marriage equality will lead to the erosion of marriage, an increase in single parenthood, and even, according to a group that styles itself “100 Scholars of Marriage,” a dramatic spike in the number of abortions.

[T]he legal arguments for the couples who want to marry (or to have their out-of-state marriages recognized by their home state) are clear, and have been stated many times. In brief: the guarantee of equal protection under the law requires the state to recognize their relationship, unless there is a good reason not to do so. Conversely, non-recognition causes serious harm to the couples and to their families. Plaintiff James Obergefell presents perhaps the most sympathetic case of all: He can’t even get himself listed on the death certificate of his deceased husband, John Arthur, because his home state of Ohio won’t recognize the couple’s out-of-state marriage. Among the other plaintiffs are Valerie Tanco and Sophy Jesty, who can’t get on a single health insurance plan in Tennessee. More worrying, Jesty’s legal relationship to their child is unclear.

Against these realities stand a couple of arguments that the states have been making during the past decade, but that have mostly melted away after a decade that has seen the national dialogue around marriage equality dramatically transformed.

The first argument—that kids do best when raised by a mother and a father—isn’t supported by the evidence.  . . . As the brief filed by the American Sociological Association makes clear, when the correct comparison is made, children raised by same-sex parents fare just as well as those raised by the opposite-sex counterparts.

The second argument is that marriage is about procreation and that excluding gays is necessary to protect the only relationship—a man and a woman—that can lead to “natural” procreation. This argument has been thoroughly eviscerated. As Justice Elena Kagan pointed out during oral argument in the Proposition 8 case in 2013, there’s no age limit on marriage—a limit that one would expect if marriage were really all about procreation.

With this wispy underbrush swept away, the focus naturally turns to the many costs imposed by the marriage bans. They’re expensive, because marriage carries many benefits. They’re damaging to emotional and physical health, because, as the brief co-authored by the American Psychological Association points out, excluding same-sex couples from the protection of the law creates a stigma—and stigmatized groups suffer stress, with resulting health consequences.

Expect hate merchants like Tony Perkins, James Dobson and Virginia's own heinous Victoria Cobb to continue to repeat the discredited lies and underscoring the reality that no one lies more than the fundamentalist "godly folks."

The Lies and Legal Gymnastics of Gay Marriage Opponents

As the Christofascists and their political lackeys have steadily been losing the war over same sex marriage, the lies and farcical arguments that they have put forth to justify animus based bans on gay marriage have become increasingly incredible.  Indeed, one could argue that the attorneys signing briefs and pleadings ought to face sanctions for their far less than honest claims and arguments (in many states, by signing court filings, attorneys vouch for their truth and veracity).  In short, legal counsel for the anti-gay faction have becomes as big of liars as the "godly folk" who think any and every lie is justified if it furthers their agenda of hate and division.  A column in the Washington Post looks at this phenomenon.  Here are highlights:

Gay-marriage bans don’t discriminate against gays because they apply to heterosexual people, too.

At least, that’s what Kentucky is arguing — apparently with a (ahem) straight face — to the Supreme Court. This and other Onion-worthy arguments illustrate how desperate gay-marriage opponents have become, and how nakedly their logic now mirrors that used to justify the bigoted anti-miscegenation laws struck down a half-century ago.

In most states, conservatives realize they’ve basically lost the war against gay marriage, both in the court of public opinion and the literal court of law. . . . . . That’s why many opponents to gay marriage see “religious freedom” laws, such as the one now igniting a firestorm in Indiana, as the last remaining policy tool available to them. 

But in a large chunk of the country, gay marriage is not quite a fait accompli. On April 28, the Supreme Court will hear cases from Kentucky, Michigan, Ohio and Tennessee relating to both bans on same-sex marriage and refusals to recognize such marriages performed in other states. The justices’ reaction to these cases is expected to finally, formally determine whether gay marriage must be legal in all 50 states.

States have thus been forced to get more creative about how they justify their remaining marital prohibitions and how they can plausibly claim that their knee-jerk restrictions on matrimony, which the court has repeatedly called a “fundamental right,” don’t violate the equal protection clause of the Constitution. 

And so we arrive at Kentucky’s legalistic gymnastics. . . . . the Bluegrass State’s Democratic governor argued that gays are not being discriminated against because they’re still allowed to get married — so long as they disregard whom they’re sexually attracted to.

According to the brief: “Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.”

Kentucky’s argument closely resembles one used, and rejected, in a landmark Supreme Court case about marriage restrictions: Loving v. Virginia, decided in 1967. Virginia presented similar logic as to why its law banning interracial marriage — like those then on the books in 15 other states, including Kentucky — was not discriminatory. Both blacks and whites were allowed to marry inside their race, after all, and both were equally punished for marrying outside of it. The court didn’t buy it.

These and other arguments contained in the four states’ briefs often imply that gay men and lesbians can ignore and switch their sexual orientation at will, despite the scientific community’s consensus to the contrary. In the absence of the ability to legally marry, the states suggest, gay couples will simply shrug, break up and decide to procreatively pair up with a member of the opposite sex instead. This scenario is almost funny, in a sitcom-y sort of way. Or at least it would be, if so many loving couples’ fates didn’t hang in the balance.

7th Circuit Pounds Defenders of Indian and Wisconsin Marriage Bans

Judge Richard Posner

As an attorney I understand the concept that in court both sides to a controversy deserve representation.  However, in practice, I do not understand how attorneys can in good conscience argue positions that support discrimination and the mistreatment of other citizens or which in effect seek to subvert the United States Constitution.  To do so, in my view, makes one little better than a paid prostitute and a tawdry one at that.  Seemingly, the judges on the United States Court of Appeals for the Seventh Circuit may have subconsciously shared my view on this issue.  Whatever their views, they laid into the attorneys for the states of Indiana and Wisconsin today during oral argument who sought to defend the anti-gay animus motivated gay marriage bans of those states.   My fellow Bilerico Project contributor, John Becker was in the courtroom and filed this story (the following are highlights):

Same-sex marriage bans in Indiana and Wisconsin took a beating today at the 7th U.S. Circuit Court of Appeals in Chicago, where a three-judge panel greeted anti-equality arguments from Wisconsin and Indiana with a combination of skepticism and derision. The court appears poised to hand marriage equality advocates another federal court win -- and possibly their first unanimous one.

As a packed courtroom looked on, the judges -- Richard Posner, a Reagan appointee; Ann Claire Williams, appointed by Bill Clinton; and Obama appointee David F. Hamilton -- repeatedly tore into Indiana Solicitor General Thomas Fischer and Wisconsin Assistant Attorney General Timothy Samuelson. Posner, by far and away the fiercest interrogator, slammed Indiana's claim that their governmental concern behind regulating marriage is accidental births and "unintended children":

"So now you have a huge number of potentially abandoned children, they're put up for adoption. Don't you think it would help these children, the products of these accidental births, if their parents -- whether same-sex or different-sex -- were married?"

Fischer tried to equivocate, but Posner wasn't having it. "Answer my question," he ordered.
That interaction, which occurred just seconds into Fischer's opening statements, set the tone for the shellacking that was to follow. "Yeah, I'm going to interrupt you," Posner told an obviously frustrated Fischer. "You're just going to have to be patient."

"Would you criminalize fornication?" Posner asked sarcastically. "It sounds like a way of dealing with this unintended child problem."
Judge Williams piled on, expressing disbelief at Fischer's contention that even though same-sex couples can successfully raise children, Indiana's marriage ban should remain because "with opposite-sex couples, there is very little thought given during the sexual act sometimes to whether babies may be a consequence."

"So," Williams said, "because gay and homosexual couples actually choose to be parents, choose to take on that obligation, that difference of choice is set up differently than accidental? Here are people who actually want to have children -- know that they want to have children. It is not accidental; they make that commitment to raise children. I just don't get that."

Judge Hamilton pointed out that marriage bans are based on sex: "Bob can marry Chris if Chris is a female; Bob cannot marry Chris if Chris is a male. So that would seem to point us in the direction of heightened scrutiny."

He also noted the parallels between Indiana's anti-equality arguments and those made in the last century to justify bans on interracial marriage:

"The right to equal protection of the laws is an individual right... [and] the argument you're making is exactly the same argument that was made with respect to race in Loving v. Virginia, and it was flatly rejected by the Supreme Court.

After slamming Indiana's arguments as "ridiculous" and "absurd," Posner (left) returned to the subject of marriage discrimination and how it harms the children of same-sex couples. He asked Fischer whether he'd read a brief filed in the Wisconsin case by the Family Equality Council.

"It has a great deal of rather harrowing information about the problems created for children and their parents in the case of same-sex couples not being allowed to marry who have adopted children -- how they feel when they grow up, how what happens when one of their parents dies."

And then the clincher:  "What's on the other side of this scale outweighing these costs? Is there any empirical basis for anything you've said?"

The state of Wisconsin didn't fare any better. In fact, there were several points where Assistant Attorney General Timothy Samuelson couldn't muster any kind of an answer to the judges' withering questions.

 

Posner nearly laughed Samuelson's appeals to tradition out of court: "How can tradition be a reason for anything?" he said. "I don't get that. Once again, the Loving case: the tradition of forbidding interracial marriage went back to colonial times. It was 200 years old by the time Loving came along."

Samuelson responded that Loving was a deviation from, rather than a codification of, common law, eliciting incredulity from the court. Posner set him straight:

"Interracial marriage had been forbidden in the colonies and in many, many states... for more than 100 years... so in other words, tradition per se is not a grounds for continuing. 'We've been doing this stupid thing for 100 years, 1,000 years; we'll keep doing it because it's tradition.' You wouldn't make that argument. Don't you have to have some empirical or some practical or common-sense basis for barring these marriages? I didn't get anything out of your brief that sounded like a reason for doing this."

Later, Posner called the tradition argument "feeble" and asked whether the state had anything better. He also took issue with Samuelson's contention that the tradition of marriage discrimination is based on "experience."

"It's based on hate, isn't it?" Posner asked. When Samuelson responded in the negative, Posner replied, "You don't think there's a history of rather savage discrimination against homosexuals in the United States and the rest of the world?"

Judge Posner had similarly little use for Samuelson's appeal to democracy. "That argument doesn't get you very far. Are you really saying there shouldn't be any constitutional invalidation, ever, of a state or federal statute because that's 'anti-democratic'?"

And then, if it weren't already abundantly clear which way he'd be voting, Judge Posner tipped his hand:

"What is the rational basis for a legislative choice denying same-sex marriage? We know that these people want to get married; we think, at least I think, it's good for the kids -- what's the offsetting harm? ...These people and their adopted children are harmed by your law. Now the question is, what is the offsetting benefit of your law? Who's being helped by it?"

Samuelson repeatedly attempted to dodge the question . . . .

There's more, so read the entire post.  Overall, it was a bloodbath against the defenders of discrimination.  Should the court rule unanimously to strike down the two state bans, I suspect that the opinion will make most interesting reading.  It is also noteworthy that the most aggressive judge in challenging the smoke screen justifications of both state was a Reagan appointee.

Marriage Equality and the Factually Challenged

Two different posts, one in the Huffington Post and the other in the Washington Post, underscore the idiocy and blatant ignoring of facts that are the norm among gay marriage opponents.  All of the opposition ultimately boils down to the Christofascists' obsession with sex and the goal of ideally banning all sexual activity except between heterosexual couples in their child bearing years. And even then, the couple best not enjoy the intimacy or engage in it for any reason other than to procreate children.  Otherwise, in the view of the fathers of the Catholic Church's "natural law" theory devised in the 12th century, they will be guilty of fornication.  The piece in the Huffington Post looks at the lies - there really is no other term for it - of those who claim that same sex marriage harms families/children.  The one in the Washington Post looks at how the Christofascist arguments - if they were to succeed threaten the marriages of some heterosexuals.  First, these highlights from the HuffPo piece:

Anti-gay campaigner John Eastman, Chair of the hateful National Organization for (sic) Marriage, says: "We keep making the argument of the importance of marriage, that it takes a man and a woman to make a child and that the state can't continue to redefine that if civilization's policy goal is to support families rather than water down marriage to be about any adult relationship. These judges keep saying that's not what marriage is. Based on what? It's like we're in Stalinist Russia." The mere fact that Eastman could say something so absurd is evidence that we are NOT "in Stalinist Russia."

It is useful to remember what happened there. You might remember things such as the massive string of Siberian concentration camps. Secret police would round people up to be convicted without evidence and denied any kind of reasonable defense. There was genocide in the form of a planned famine against Ukraine. Stalin invaded the Baltic States and began a campaign against Jews there. Millions were imprisoned, starved or executed; free speech was impossible, and political opposition banned. 

Eastman confuses losing a legal argument with not being allowed to make one. Given how NOM-types have been cheering anti-gay repression by Stalin Jr., Vladimir Putin, it is a bit hypocritical to whine about being victims of a Stalinist legal system.

The reality is that civilization has had many different policies regarding marriage and the purpose of marriage has continually changed. There was no one goal, but rather many goals.The Apostle Paul's view of marriage was it was inferior to celibacy, justified only if individuals were unable to resist evil sex. "NOW concerning the thing whereof you wrote to me: It is good for a man not to touch a woman. But for fear of fornication, let every man have his own wife and let every woman have her own husband..

The goal of marriage was legitimizing sex, of which children might be a consequence. It wasn't a pro-family inspiration, however; it was an anti-sexual one. John Witte Jr. noted that Paul's anti-sexual views became more and more widespread so that the "late Church Fathers... revealed an increasing preference for virginity, celibacy, and monastic chastity -- sometimes pressing their preference to the point of outright opposition to intercourse and even to marriage itself.

Eastman has argued same-sex marriage somehow undermines support for families and will "water down marriage." Eastman and his fellow campaigners never explain the magical process by which this takes place. How does preventing gay parents -- who are raising a family -- from marrying, "support families?" Do the means -- banning marriage -- lead to the goal of protecting families?

What does Eastman mean by families? Are older childless couples a family or not? Do young couples only become a "family" after giving birth? If the prime purpose of marriage is having children then many marriages are NOT legitimate marriages. Couples unable to have children, due to medical reasons or age, are not married. Some would argue it is Eastman who is changing marriage.

Eastman's comparison of the judicial system to "Stalin's Russia" is almost as ludicrous as the legal arguments he uses. NOM is factually challenged, in that they twist facts or just make them up to serve their ends.

Eastman argued the reason he is losing isn't because he's full of crap, but because a cadre of "activist political judges" are ruling against him. He claims Democrats appointed these judges, "This is just raw politics." Sadly for him, however, he is once again making up facts. Reporter Steve Friess notes, "just seven of the 22 federal judges who have ruled in the various cases since Windsor were appointees of Democrat presidents;" Republicans appointed the rest.   Nor should we forget that a Reagan appointee decided the Prop 8 case and Justice Anthony Kennedy, another Reagan appointee, wrote the Windsor decision. 

As I say so often, no one lies more - other than perhaps Vladimir Putin - than  the Christofascists.  The piece in the Washington Post picks up on the danger the Christofascists pose to many heterosexual marriages:

Why does this upset me so? Well, you see, I got married two years ago, a few days shy of my 60th birthday. My friends (and new husband) tell me I still look super awesome, and I can still do a pretty good downward dog. But the inescapable fact is that — under normal circumstances (more about that later) — I am way past reproductive age. I have the hot flashes to prove it. If, as Niemeyer says, the whole point of marriage is not the mere parenting of kids but actual biological reproduction, it is clear to me that he believes that my marriage is invalid. To opponents of gay marriage, marriage is all about breeding. Since my breeding days are over, it looks like, marriage-wise, I should be, too.

And it isn’t just Virginia. Kentucky used the same argument. So did Georgia. And Texas. This argument is surely going all the way to the Supreme Court.

Think of the implications of this, ladies. . . . . Marriage is thus not about friendship. Not commitment. Not companionship. Not even tax breaks. Just procreation. And love? I love my husband. I’m pretty sure he loves me. But according to the state of Virginia, without childbirth, what’s love got to do with it? Virginia has no interest in “licensing adults’ love,” Niemeyer quotes.

Judge: Indiana Has ‘No Valid Reason’ To Single Out Same-Sex Marriages

Two Indiana plaintiffs

Things continue to go less than well for Christofascists and Republican officials who oppose marriage equality largely because other than religious based animus, they can show no rational reason for barring only same sex couples from marrying.  In case after case their argument that marriage is procreation has fallen apart and rigged studies slamming gay parenting have been eviscerated in opposing briefs, on the witness stand in cross examination (think Michigan), and in amicus briefs filed by legitimate expert associations.  Thus, it is no surprise that a federal judge in Indian stated that the State of Indiana had proved no "valid reason" for the state's same sex marriage ban.     Here are excerpts from The New Civil Rights Movement:

Earlier this month, Federal Judge Richard Young issued a ruling barring the state of Indiana from enforcing its gay marriage ban against Niki Quasney and Amy Sandler (above) who were married in Massachusetts in 2013.

Although Nikki and Amy are part of a larger group of plaintiffs suing to have their marriages recognized by Indiana, they argued they had an “urgent need” for legal recognition because Nikki has fourth stage ovarian cancer. Judge Richard Young agreed, and granted them a temporary restraining order April 11.

Friday, the judge published his written order, explaining his rationale for his decision and it does not bode well for Indiana’s marriage ban. The ruling criticizes the state’s argument that it is in the state’s interest to protect marriages where the couples can procreate, saying it is the same argument being ruled against in marriage equality cases all over the country. All five of the cases challenging the state’s marriage ban have been assigned to Judge Young, so what he thinks counts.

Judge Young’s order states:

Lawyers for the state had not presented any “valid reason” why the state should not recognize Amy and Nikki’s marriage.

Nikki, Amy and their two children would likely suffer ‘irreparable harm” if the order was not granted.

Nikki and Amy and their fellow-plaintiffs are likely to prevail at trial.

It is that last pronouncement that must be causing Indiana Attorney General Greg Zoeller a sour stomach. His office released a statement hanging their hat on the fact that it was a narrow ruling and saying they would continue to zealously defend the ban.

What I find most baffling - although very helpful to the cause of marriage equality - is way in which the idiot anti-gay marriage protesters assemble outside courthouses holding religious signs that make it crystal clear that their opposition arises from one thing: religious based animus which is not sufficient to uphold discriminatory laws.

New Mexico Supreme Court Affirms Same-Sex Marriage

In a unanimous ruling that will send Christofascists into spittle fleck convulsions, the New Mexico Supreme Court upheld to rights of same sex couples to civil law marriage.  Indeed, the Court held that to bar gays from marriage would violate the equal protection guaranties of the New Mexico Constitution.  The Court also rejected the Christofascist argument that marriage should be reserved to those who can procreate, noting that no such bars apply to the elderly, the infertile or those who choose to not have children.  As noted in the previous post, love, commitment, companionship, and shared goals are the real substance of marriage, not legalized sex.  Here are highlights from the Albuquerque Journal:

The New Mexico Supreme Court on Thursday ruled in favor of same-sex couples, granting them all the same rights of marriage enjoyed by heterosexual couples.

The court’s 31-page opinion states, in part, that: “All rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

New Mexico joins 16 other states, the District of Columbia, and several Native American tribes in recognizing same-sex unions.

Justice Edward Chavez, who authored the unanimous opinion, rejected arguments made during an October hearing by opponents of same-sex marriage.

“Procreation has never been a condition of marriage under New Mexico law, as evidenced by the fact that the aged, the infertile, and those who choose not to have children are not precluded from marrying,” Chavez wrote in his opinion.

However, the ruling also stipulated that religious clergy who do not agree with same-sex marriage are not required to perform marriage ceremonies for gay and lesbian couples.

The court ruled that county clerks must issue marriage licenses to couples regardless of gender, and that licenses issued to same-sex couples prior to the ruling must be recognized. More than 1,400 same-sex couples have been issued marriage licenses in New Mexico since August.

ACLU-New Mexico’s Legal Director Laura Schauer Ives said in a release, “As a state, we have always strived to treat all families with dignity and respect, and today’s decision allowing loving, committed same sex couples to marry continues that tradition. The more than 1000 same-sex couples who have already married in New Mexico can now rest certain knowing their marriages will be recognized and respected by our state.”

 The full opinion can be read here.