Wednesday's landmark decision by a federal court that California's ban on same-sex marriage violates the U.S. Constitution begins to pave the way for an eventual Supreme Court decision on marriage equality. How will the Supreme Court rule?
When the California case was first filed by the all-star legal team of Ted Olson -- who argued Bush v. Gore for George W. Bush and then became his Solicitor General -- and David Boies -- who, ironically, represented Al Gore in the disputed presidential contest -- the leading gay rights organizations, joined by the ACLU, came out against the lawsuit. They shared Olson and Boies's goal of securing marriage equality, of course, but they feared what the conservative Roberts Court might do. A strong Supreme Court decision against gay marriage would create a precedent that would take decades to undo. With our society moving generally in the direction of more tolerance for gays and lesbians, activists wanted to wait a few more years before bringing a case to the high court.
But gay rights activists may have been too pessimistic about the current Supreme Court. It's true that the Roberts Court is conservative and that several Justices are unlikely to be open-minded about same-sex marriage, including the four most right-leaning Justices: Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito. On the other side of the bench, there are four Justices likely to be favorable to Olson and Boies's argument that the denial of marriage rights to same-sex couples violates the Constitution: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (assuming she is confirmed).
As usual in the Supreme Court these days, the swing vote belongs to Anthony Kennedy. And there are several reasons to believe that Kennedy, though conservative on many issues, will vote with the liberals on this one. The Supreme Court has issued two major decisions dealing with gay rights over the past 15 years. Both decisions came out strongly in favor of gay rights -- and both were written by Justice Kennedy.
In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."
These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.
Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government. This has led him to vote in ways that liberals love and conservatives hate -- such as his vote to affirm Roe v. Wade -- and vice-versa -- such as his vote against government regulation of corporate speech. But it bodes well for the liberals in the same-sex marriage case.
Of course, no one can really predict what the Supreme Court will do. The same-sex marriage case will take years to reach the high court and, in the meantime, there may be turnover among the Justices. But so long as the question of marriage equality turns on Justice Kennedy's vote, Olson and Boies -- and those in the gay and lesbian community who are depending on them to win this case -- are in good hands.
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Recall Justice Burger's notes on Roe v. Wade. Faced with overwhelming legal precedent of protection of the unborn back to the Hippocratic Oath (400 BC), the SCOTUS seized upon the flimsiest historical footnote in order to ram a Sherman tank through a keyhole: the Pythagorian Greeks practiced abortion, so thus the Hippocratic Oath stood utterly nullified. (It never occurred to them to consider why Pythagorian practices never became part of mainstream Western Civ.)
Fast forward to the equally illiterate California court. A "human right" that even Greek and Roman homosexual political leaders--with the power to execute individuals by verbal fiat--never knew they had? Yet in the entire Greek and Roman eras never once did they rethink marriage as being between one man and one woman?
Abortion --> the slightest piece of Greco-Roman minutia interprets all of Western common law.
Gay "marriage" --> the whole of Greco-Roman civilization, also part of our common law, turns it upside down.
Driven by their own internal wind vane, the amoral are carried along like floodswept victims.
1. Common law
2. Proxy marriage
3. Under age
4. Not appearing in person
5, Unable to pay fee
6. No valid ID
7. Expired 90 day license
8. Certificate not returned in time by officiant
OK....rights activists....get busy.
I don't see homosexuality as either good or bad, just there; and - between adults in private - it is harmless and nothing to do with the State. The fact that it was ever criminalised demonstrates the fear of ordinary ignorant people over the centuries; but it also reflects the desire of any pack to ostracize abnormality.
Statistically, homosexuality is abnormal - by definition. In terms of human reproduction it is not only abnormal but pointless.
Now the question arises, should we LEGISLATE to allow constitutional approval of abnormal behaviour?
My conclusion is this. An uncivilised society criminalises homosexuality. A decadent society celebrates it.
We're years ahead in the UK. Last year, liberals tried to pass a law banning criticism of homosexuals. After much campaigning, they were stopped, but showed no sign of thinking they might have got it wrong: their agenda is 'homosexuality is good', and being a liberal agenda, it must be right. For me, that's totally illiberal.
Fascists come in all shapes, and political colours. Social change runs the risk of being the thin edge of a very big, anti-democratic wedge. Today's minorities are sometimes tomorrow's commissars.
All I ask is that we remember that.
George Will is correct. You are simply wrong.
I always know, when someone starts out their comment with, "I'm not homophobic," that's exactly what they are. Once again, I was proven correct.
I'm 70 years old and I support equal human and civil rights for all. I suspect you're younger than I am, so please accept my wise advice: Grow up and get a life.
Take that, slogward (aka bigot-who-doesn't-think-they're-a-bigot).
Marriage is different than sex. It is a social conferral, and I do not believe Kennedy will accept marriage although he does protect the right to sexual relations. There is also the concern about people not being able to exercise their right to protect their children from the portrayal of gay life as "normal", and that this might be held to be discriminatory. Parents have the right to portray what is normal to their children through the schools, and this a local matter; as marriage is a custom, and not a legal matter.
Polygamy may, in fact, become legal some day. It won't be because gays can marry. If it happens, it will be because what we thought was a legitimate governmental interest, turns out to not be legitimate after all.
I'm not arguing in favor of polygamy, but I am observing that the reasons for barring it may not be as strong as those against incest.
Leave Roberts, Alito, Thomas, and Scalia in the gutter.
Really ? Seems wrong to me.
I. "Wherever the term "marriage" appears in this article, it shall carry the identical weight and meaning as the phrase, "homosexual union."
II. Homosexual union shall mean a legally binding, spousal relationship between two consenting members of the same sex.
End of discussion. The traditional meaning that has stood the test of time, culture, language, religion, philosophy, and even sexual orientation remains unchanged, and gays get every right believed to have been withheld from them.
The only thing missing is the opportunity to change textbooks and shove it down the throats of unsuspecting children and religious parents, although I'm sure (wink, nod) that would never occur to homosexual activists, right?