Same-sex marriage in the United States

How Gay Marriage Could Cause the GOP Major Headaches In 2016

Every GOP candidate is going to have to take a position on the threat posed by this kid. (Flickr/Alan Light)
After yesterday's dramatic ruling from the Supreme Court effectively legalizing same-sex marriage in 11 more states (that now makes 30, plus DC), you would have thought conservatives would be expressing their outrage to anyone who would listen. But their reaction was remarkably muted. "None of the top House GOP leaders (Speaker John Boehner or Majority Leader Kevin McCarthy) issued statements. Ditto the RNC," reported NBC News . "And most strikingly, we didn't hear a peep about the Supreme Court's (non)-decision on the 2014 campaign trail, including in the red-state battlegrounds." The only one who issued a thundering denunciation was Ted Cruz. Even though the GOP's discomfort with this issue has been evident for a while, with the unofficial start of the 2016 presidential campaign just a month away (after the midterm elections are done), the issue of marriage equality is going to become positively excruciating for them. Many people saw the Court's denial of cert in the five cases they...

Is Nationwide Marriage Equality Now Inevitable? Almost, But Not Quite

Flickr/Victoria Pickering
As you've heard by now, the Supreme Court today declined to hear a set of five cases involving state bans on same-sex marriage, from Virginia, Utah, Oklahoma, Indiana, and Wisconsin. In all these cases, the appeals court had overturned the state's ban, and now same-sex marriages are legal not only in those states, but also soon in the six other states covered by the 4th, 7th, and 10th Circuits (Wyoming, Colorado, Kansas, West Virginia, North Carolina, and South Carolina). Like many other people, I've already written today that the legal argument over marriage equality is now all but over. The way it presumably will play out from this point forward is that one of the more conservative circuit courts will issue a ruling upholding a state ban on same-sex marriage, and the Supreme Court, presented with this conflict between circuits, will take the case to settle it. And in the wake of today's ruling, it's hard to see how they (and by "they" I mean Anthony Kennedy) would rule that state...

The Road to Marriage Equality: Boies and Olson’s Wedding March

AP Photo/Adam Lau
AP Photo/Adam Lau David Boies kisses fellow lawyer Theodore Olson on the cheek at a public rally on Wednesday, Aug. 4, 2010 in West Hollywood, Calif. Gay rights supporters turned out in droves to celebrate a federal judge's overturning of California's Proposition 8, a same-sex marriage ban, a landmark case which could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America. T he history of civil rights for lesbian, gay, bisexual, and transgender (LGBT) Americans took a dramatic turn on June 26, 2013. On that date, the U.S. Supreme Court invalidated the Defense of Marriage Act (DOMA), which since 1996 had defined marriage as being between one man and one woman. The Court also let stand a lower ruling that declared Proposition 8—the 2008 voter referendum outlawing same-sex marriage in California—unconstitutional. The two legal victories rode momentum that had revved and sputtered ever since the early hours of June 28, 1969, when...

Daily Meme: Is Same-Sex Marriage Unstoppable?

Marriage is all over the headlines these days. First, an anniversary: Earlier this week, Marcia Hams and Susan Shepherd celebrated ten years of legal marriage . In May 2004, after a years-long legal battle, they were the first and only people in line at City Hall in Cambridge, Massachusetts, ready to to receive a marriage license. At the time, they were worried that a protester would shoot them. Now, gay marriage is legal in 19 states, including the entire Northeast. Court rulings in favor of same-sex marriage have been coming fast and furious. The latest state to jump on the gay-marriage bandwagon is Pennsylvania; on Tuesday, a judge once endorsed by Rick Santorum struck down the state's ban on same-sex unions . On Monday, another federal judge ruled Oregon's same-sex marriage ban unconstitutional . The landscape has changed so quickly that some commentators are wondering whether the movement is "unstoppable." Americans are more and more likely to favor legalizing gay marriage: A...

Judging Obama's "Evolution" on Marriage Equality

White House photo by Pete Souza
Years from now, Barack Obama will almost certainly be seen as the most significant American president in the history of the gay rights movement. Under his watch, the military ended its policy of discrimination against gay servicemembers, the Defense of Marriage Act was abandoned by the administration and then overturned by the Supreme Court, and a majority of Americans came to embrace marriage equality—not least, the president himself. But there's another way to look at that story, which is that on marriage, at least, Obama had to be dragged to the position he eventually took. An article in next Sunday's New York Times Magazine , by Jo Becker, details just what the process was, and if you're looking for evidence that Obama's "evolution" on the issue was purely political, there's plenty. I don't know too many liberals who would doubt it—or conservatives either, for that matter. The former see a president whose heart was in the right place but was cautious about when it would be...

What Marijuana Legalization Won't Be in 2016

Flickr/Tha Goodiez
If you're an advocate of marijuana legalization, you've had nothing but good news for some time now, and more keeps coming. Today at that snappy new Vox thing the hip kids put together, there's an article pointing out that although many people predicted a spike in crime once pot became legal in Colorado, statistics from Denver show that crime has actually declined a bit over the last few months compared to the same period in 2013. It's a small period of time, to be sure, but it doesn't look as though there has been an explosion of robberies or any other kind of crime. And with the rapid movement of public opinion in favor of legalization, it would be easy to predict that politicians are going to be changing their positions very soon, or as the Atlantic puts it in an article today, " Weed Is the Sleeper Issue of 2016 ." OK, so we can put that headline down to an overzealous editor; the article itself, which runs through the positions of a number of potential presidential candidates,...

The Citizens United of the Culture Wars

Flickr/Mark FIscher
Flickr/Mark FIscher E ven a broken clock is right twice a day. Heeding calls from gay-rights supporters, business groups, and Republicans like John McCain and former presidential candidate Mitt Romney, on Wednesday Arizona governor Jan Brewer vetoed a "religious liberty" bill that would have allowed for-profit businesses to refuse service to gays and lesbians so long as they were motivated by "sincerely held religious belief.” A nearly identical law failed to advance in Kansas last week. Now, in light of the blowback, anti-gay discrimination bills in conservative legislatures—including Mississippi, Georgia, and Oklahoma— have stalled , and even lawmakers who voted for such measures are stepping back their support. The failure of these anti-gay discrimination bills amounts to a stern rebuke to the religious right, which sees defeat on the horizon in the gay-marriage fight. Just in the past two months, judges have overturned bans on same-sex marriage in Oklahoma, Virginia, Texas, and...

There's No Place Like Homophobic Kansas

AP Photo/Orlin Wagner
AP Photo/Orlin Wagner Representative Ray Merrick, speaker of the Kansas House of Representatives, which passed a broad bill allowing discrimination against gays and lesbians last week. C ount it as yet another thing wrong with Kansas, where schools teach kids Adam and Eve rode the dinosaurs and it's safer to be a gang member than an abortion provider . Last week, lawmakers in the state's Republican-controlled House of Representatives set off outrage across the country by passing a law that would not only make it legal for private businesses to discriminate against gays, lesbians, and transgender people; it would also permit state employees—long obliged by our legal tradition to serve all customers on equal terms—to deny LGBT people basic services as long as they are motivated by "sincerely held religious beliefs." Narrow exemptions for religious and religiously-affiliated institutions have increasingly become a standard part of gay-marriage bills as more and more states begin to enact...

Marriage Equality Opponents Left With Nothing But Tradition

Now there's a traditional marriage. I believe that's Tasha Yar presiding. (Flickr/TrekRadio)
2013 was not a good year for opponents of marriage equality. Maryland, Delaware, Rhode Island, Illinois, New Mexico, California, New Jersey, Hawaii, and Minnesota were added to the list of states allowing same-sex marriage. The Defense of Marriage Act was struck down by the Supreme Court. And if anything, 2014 is shaping up to move even faster. Earlier this week, a judge in Kentucky ruled that the state must honor same-sex marriages performed in other states. And last night, a federal judge in Virginia struck down the ban on same-sex marriage the state passed in 2006. The judge stayed her decision until a higher court can rule on the inevitable appeal. But with these cases piling up, it seems obvious that the Supreme Court is going to rule sooner rather than later on the legality of same-sex marriage bans, something they've been trying to avoid until now. And with the continued evolution of American culture and public opinion in favor of equality, the chance that those bans will be...

Going Rogue for Marriage Equality

AP Photo/Matt Rourke
AP Photo/Matt Rourke Tamara Davis, left, and Nicola Cucinotta kiss after obtaining a marriage license in Montgomery County, Pennsylvania despite a state law banning such unions. L ast week, Montgomery County, a sleepy suburb of Philadelphia, was thrust into the national spotlight when its elected register of wills, D. Bruce Hanes, put principle above policy and began issuing marriage licenses to same-sex couples in defiance of Pennsylvania's long-standing ban on gay unions. Since July 24, Hanes has issued more than two dozen of the licenses. Thus far, two lesbian couples have used the licenses to tie the knot in the first officially sanctioned same-sex marriages in Pennsylvania history. Hanes's pioneering effort—which materialized over the course of a single week after a lawyer representing two women contacted his office to inquire about obtaining a marriage license—has elevated Pennsylvania's stature as a gay-rights battleground and put Governor Tom Corbett on notice that, on the...

Progressives' Post-DOMA To-Do List

AP Photo/Alex Brandon, file
AP Photo/The Columbus Dispatch, Fred Squillante T wo of my favorite writers on legal subjects, Dahlia Lithwick and Barry Friedman, wrote a piece for Slate earlier this week wondering if the progressive agenda hasn't been exhausted by the victories on same-sex marriage. "While progressives were devoting deserved attention to gay rights," they argue, "they simultaneously turned their backs on much of what they once believed." I share their sense of frustration, but I interpret the landscape differently. To me, the problem isn't the lack of a robust progressive agenda. The problem is that progressives generally lack power. Last week, I saw strong defenses of progressive values at every level of politics—from ordinary citizens to the highest offices in the country. In a brief window of time, you saw heroic opposition to barbaric attacks on the welfare state in North Carolina and reproductive freedom in Texas, President Obama's climate change speech , and eloquent defenses of equality by...

The Religious Right's Terms of Surrender

Rachel Ensign/Twitter
Rachel Ensign/Twitter (@RachelEnsignWSJ) L ast week's Supreme Court rulings striking down the Defense of Marriage Act and denying standing to California's Proposition 8 supporters have brought out the usual clown show of conservative religious leaders proclaiming the end of days. It's the standard stuff from the activist right: Here comes pedophilia, incest, polygamy, and bestiality. Christian florists will be dragged to jail for refusing to cater a same-sex wedding. School children will now be forced to simulate lesbian sex with their Barbies. Stirred to action by the decision, the Christian right has vowed to resist the spread of same-sex marriage nationwide, using civil disobedience if necessary. There's even talk of reviving the Federal Marriage Amendment , which would amend the U.S. Constitution to define marriage as being between a man and a woman. But conservative intellectuals aren't expressing the same bravado as their activist counterparts. Like the 73 percent of Republicans...

Why the Prop. 8 Decision Should Make Liberals Uneasy

San Francisco City Hall after Prop. 8 was struck down. (Flickr/CHUCKage)
It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make. But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday. In the case, the...

Two Cheers for the Supreme Court on LGBT Rights

The justices give us at least a couple of reasons to celebrate.  

AP Images/Carolyn Kaster
Today, the Supreme Court finally issued two long-awaited major opinions on gay and lesbian rights. One of them was a historic opinion and a major victory for civil rights. The other stopped short of what could have been, but will at least result in same-sex marriage being legal in the nation's biggest state. The first of today's rulings, United States v. Windsor , concerned the constitutionality of Section 3 of the infamous Defense of Marriage Act (DOMA), which defined marriage for the purposes of federal law as being only between a man and a woman. Edith Windsor was inelgible to receive a spousal benefit on her federal estate taxes because her marriage to another women was not recognized by federal law. According to the Court's 5-4 majority opinion—authored by Anthony Kennedy and joined by the Court's four Democratic nominees—Section 3 is unconstitutional. "DOMA seeks to injure the very class New York seeks to protect," Kennedy argues. "By doing so it violates basic due process and...

After Supreme Court Ruling, the Long Walk to the Altar Continues

AP Photo/J. Scott Applewhite
AP Photo/J. Scott Applewhite W ell, that's that. After six years of litigation, today the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex marriages performed in the states, and dismissed the Prop. 8 case on procedural grounds. Because California's governor and attorney general declined to defend the law's constitutionality in court, supporters of the measure took up the task; the justices found they did not have the proper "standing" to do so. Practically, the decision finding the measure unconstitutional stands, but it applies only to California. Some gay-rights supporters are breathing a sigh of relief. When the star legal team of Ted Olsen and David Boies first filed their challenge to Prop. 8 in 2008, many in the LGBT legal rights movement feared it was too soon to ask the "big question"—do same-sex couples have a constitutional right to marry?—and that the Court would issue a broad ruling...

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