This week's stunning victory at the Supreme Court is being celebrated across the nation. Two words: “Certiorari denied.” Also known as a SCOTUS punt. While the losers grapple with how to deal with the Supreme Court's refusal to hear the current batch of already won cases, this nod toward equality is already spiraling into legal success in other states. I predict that within a few months, every state in the nation is going to have marriage equality.
What are the losers going to do about their current quandary? Read on below the squiggle.
A quick recap of what happened this week: If SCOTUS had taken up one of the current gay marriage cases, it was clear the results would have been the same 5-4 split as United States v. Windsor. It would have been late June 2015 before they made a ruling. The justices already heard all the arguments in Perry and probably didn't want to hear them again. By punting, they avoid the likely accusations of being activist judges creating new constitutional rights, as was said after the Roe v. Wade decision establishing a woman’s right to an abortion. Not only did they kick the can down the road and back into the lower courts, they also sent a message to those lower court judges. A few federal judges might still be swayed into believing right wing anti-gay rhetoric, but no Circuit Court judge is likely to go against what SCOTUS just made clear.
The only a federal judge who has ruled against marriage equality is U.S. District Judge Martin C. Feldman, the first federal court judge to reject a constitutional challenge since the SC Justices’ decision in Windsor. The Louisiana case is being appealed to the federal appellate level courts in the Fifth Circuit region. Another case could be brought in that jurisdiction that could result in a different ruling by that judge or by another judge, which result would trigger the appellate court to step in to decide contrary lower court rulings.
So far no federal appeals court has upheld a state law prohibiting same-sex marriage. Two of the lawsuits are currently in front of the conservative judges of the Fifth Circuit. Earlier this year, judges on the Sixth Circuit panel hearing a challenge to four state laws expressed skepticism that the Constitution requires states to recognize those marriages. If either one of those courts upholds a state ban, the SC will have to step in to rule on the opposing Circuit Court decisions. The question is, which of those judges want to go down in history as the last ones to drag their feet and block marriage equality now that it’s clear equality is eventually going to happen?
Here’s what’s being said by some illustrious anti-gay public figures who apparently don’t mind going down in history as stick-in-the-mud bigots. I’ve included some corrections to their erroneous statements.
From Brian Brown, National Organization blocking same-sex Marriage (NOM)
“First, the entire idea that marriage can be redefined from the bench is illegitimate.”
Brian, judges aren't redefining marriage. Most of the country has already done that. These lower court judges are simply ruling that state laws and amendments banning same-sex marriage are unconstitutional. In a sense, changing public opinion has finally allowed judges to do what’s right.
“Marriage is the union of one man and one woman; it has been this throughout the history of civilization and will remain this no matter what unelected judges say.”
For most of recorded history, marriage has been one man and as many women or girls he could buy with his sheep or goats. Read your Bible Brian, lots of examples are in there. Even in the United States, marriage could be one man with multiple women until polygamy was banned. And of course, interracial marriage was illegal in many states until the Supreme Court struck down those state level marriage bans as well. Change is hard. The racists who stomped their feet in anger over the
Loving v. Virginia Supreme Court decision striking down anti-miscegeny laws across our nation used pretty much the same arguments against interracial marriage that anti-gay proponents use against same-sex marriage: “It’s icky and the Bible says it’s wrong.”
“Second, it's mind-boggling that lower court judges would be allowed to impose the redefinition of marriage in these states, and our highest court would have nothing to say about it.”
Nothing to say about it? Asked and answered, Brian. SCOTUS has spoken and the lower courts are interpreting the
Windsor decision precisely as they should. Hence there is no need for the Supreme Court to rehear the same tired, disproven arguments: “Gays are icky so they must be bad parents, and the State is really, really concerned about children, but whoops, we’re doing nothing to keep heterosexual moms and dads together. We allow divorce, multiple marriages, out of wedlock childbearing and the State does nothing to ensure these heterosexuals who are
allowed to marry are
required or even
expected to marry. They’re not even required to properly parent their offspring. But we’re helping kids by keepin’ the gays out of marriage, yer Honors.”
Personally, I wish NOM would walk their talk and actually DO something to help kids. Maybe use some of that donated winger money to throw a workshop on how to find, create and maintain committed marriages. But unfortunately, grinding gays and lesbians under their heels is much more important to them.
Once again, judges are not redefining marriage, society is. People have figured out that gays and lesbians make perfectly good parents. Society is more accepting now than when those anti-gay laws and state constitutional amendments were voted on. Judges are now more able to honestly compare these oppressive laws written in the past decade or so with the constitutional rights afforded all Americans.
“Third, the effect of the lower court rulings is to say that a constitutional right to same-sex 'marriage' has existed in every state in the union since 1868 when the 14th Amendment was ratified, but somehow nobody noticed until quite recently. That's the absurd belief we are being told to accept.”
Actually plenty of us noticed it. I remember talking to my mom thirty years ago about our prospects for equality. She advised me to not be too impatient. “Remember,” she said, suffragists fought for the right to vote for decades. Many of them died before women were ‘allowed’ to vote.” We live in a great country, full of good, smart people. Gay and lesbian equality will happen when many of those good people finally realize how unfair it is to oppress you.”
As Martin Luther King Jr. said, “The arc of the moral universe is long, but it bends towards justice.” Like slavery and anti-miscegeny rules, sometimes it takes a long time for our laws to fully embody the basic premises and promises of freedom and equality embodied in our great Constitution. Read it, Brian. You might learn a thing or two about why this fabulous change called marriage equality that is so scary to you is happening in our country right now.
Ted Cruz also gets it wrong:
"By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution."
Absolutely wrong, Ted. In fact, they’re fulfilling their duty. Federal Courts all over the country are deciding in favor of marriage equality. So are the Circuit Courts and their Court of Appeals. The SC Justices are waiting until some bigoted lower court judge succumbs to the faulty logic anti-gay proponents present, then they’ll take the issue on and rule in favor of the more reasonable judges who recognize a constitutional basis for equality.
"This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures."
Here we go again. When the Republicans get their way in court decisions, the judges are great upstanding legal scholars. When Republicans don’t get their way, they complain about “activist judges.” The US Constitution does NOT trust state legislatures or the majority of people to make decisions that limit the rights of other citizens without judicial review. That’s exactly why we have a legal system that provides courts and judges to analyze these laws passed by the People and their duly elected representatives, and determine if those laws and amendments are constitutionally sound.
And speaking of values and mores, since when is it ethical to oppress the (mostly) heterosexual children of same-sex couples by not allowing their families to have equal rights? Really Ted, what have those kids done to you to make you want to treat them as second class citizens lacking the basic protections society affords children of married heterosexual couples?
Good Americans and our unelected judges are currently deciding in favor of marriage equality for same-sex American couples. I know that’s not what folks like Brian Brown and Ted Cruz want, but they’re going to just have to suck it up and accept the change. Or they could just continue down that path of being the last few public figures to be on the wrong side of history.
For Brian Brown it might be worth it. After all, he makes his living off donations from poor frightened homophobes. But Ted Cruz? This illogical stand might bring him some attention for his presidential aspirations and some donation money, but does he really think America will elected him president when he’s the only contender in 2016 still beating that tired old anti-gay meme? Not a chance.
America has changed. Some folks just don’t know it yet.