HOLDING HANDS—AND MUCH MORE—SOON TO BE LEGAL FOR ALL

The Supreme Court has agreed to hear an appeal from gay couples whose marriages are illegal in some states in the 6th Circuit Court of Appeals. On Friday, January 16, 2015 SCOTUS voted to accept the appeal involving same sex marriage bans in Ohio, Michigan, Tennessee, and Kentucky.

http://www.huffingtonpost.com/2015/01/16/supreme-court-gay-marriage_n_6439926.html

A couple things are surprising about this.

First of all, the decision appealed from, that of the 6th Circuit Court of Appeals, was by a 2-1 majority of a three judge panel. The losing parties could have asked for a review by the Circuit En banc which would have meant a re-hearing before all the judges in the Circuit. Since the two ruling judges were Bush appointees, and since all other Circuits ruling to date have struck down bans, it is very likely the entire court would have reversed.

And since that review was possible it was a little surprising that SCOTUS did not refuse to accept the case until further action by the Circuit judges as a whole.

Although the Supreme Court leans conservative…absurdly so as in Citizens United (which they certainly are not)…it did strike down DOMA in 2013 which action, at least in part, has led to the ensuing decisions in federal courts.

The 6th Circuit decision was premised on the notion that gay marriage should be a matter for legislatures, not courts.

Were that notion to be followed by SCOTUS in this appeal, it would undermine and effectively be a repudiation of Loving v Virginia, the 1967 case that negated state laws against interracial marriage. Recall that marriages between the races were once considered to be as immoral and as contrary to Biblical teachings as some continue to claim gay marriages are today.

Of course any prediction of Supreme Court decisions is fraught with peril for the predictor. And the most harrowing of these potential perils is pure embarrassment at being wrong, no matter the level of legal expertise and knowledge of the inner workings of the Court and the nine Justices. My own level of expertise is surpassed by many observers with far greater experience dealing with the history and nuances of Constitutional Law.

Yet it is difficult to imagine a Supreme Court with the recalcitrant likes of Justices Samuel Alito, Antonin Scalia, and Clarence Thomas being able to stem the tide of history. As we saw in the Affordable Care Act ruling Chief Justice John Roberts abandoned his natural conservative bent to provide the saving vote, albeit in a strange construct claiming the law was entirely within the power of Congress to tax while he, in effect, ignored its power to govern Interstate Commerce.

In a way looking at the ACA as a tax scheme satisfied the conservative base while simultaneously appalling and infuriating that same base by finding that “tax scheme” all huggably legal. Of course the conservative base considers any tax scheme to be the greatest sin perpetrated upon mankind.

Since Justice Anthony Kennedy has been ever more consistently liberal on any case remotely touching upon gay rights adding him to the four Court liberals is not illogical with the chance that Roberts finds a way to come aboard withe the majority.

Somehow 6-3 decisions of the Court sound more persuasive to Americans than does a 5-4 one. But the assumed persuasiveness is questionable given the 7-2 Roe v Wade decision and we know how well that has been embraced. Brown v Board of Education was a unanimous decision but  met both immediate and long term resistance in practicality if not in legal challenges.

Morality aside, there is simply no reason for gay marriage bans to be upheld. Not that I agree that such unions are immoral, but the Supreme Court does not rule on the basis of morality. Thus, we still have the death penalty.

SCOTUS has ruled that laws forbidding gay sex are unconstitutional in Lawrence v Texas. It has ruled that denying gay married couples certain federal benefits in states banning gay marriage is wrong in the DOMA case. It seems inconceivable, as an extension, that it would permit states, in effect, to restrict the interstate movement of couples legally married in one state by disallowing them to enjoy the same marital rights as other couples.

From that point is just a short distance to determining that there is no Constitutional justification to banning consensual adult couples from marrying no matter their gender.

I can just picture Rick Santorum rubbing his hands in glee now that he can fulfill his lust for the family dog.

DOMA’S ON LIFE SUPPORT—LET’S PULL THE PLUG

The Defense Of Marriage Act, or DOMA, was struck a serious blow when the Supreme Court ruled that its Section 3 was unconstituional for denying equal rights by requiring the federal government to ignore the legal married status of gay couples in states where that is permitted when applying federal law.

There certainly are multiple benefits to be derived from federal law for married couples and now thousands of couples in the states who recognize gay marriage may avail themselves of them.

But to me the most odious provision has always been Section 2 which allows states to refuse to recognize the marital status of couples who are not one man- one woman.

Ridiculous.

SCOTUS could only rule on the issues before it and those pertained to Section 3. But Section 2 flies in the face of the Constitution,

Section IV, Article 1 reads

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.   

There has been some conflict in the application of this clause by the states, though it consistently has been ruled that it does apply to judicial actions such as judgments and orders in domestic abuse and child custody cases.

But historically, other than for miscgenation, marriages legal in other states have been treated as legal in all states. Thus, common law marriages, which only a few states permit the establishment of, have been treated equally in states that do not. Likewise where the age of consent to marry differs, a marriage created lawfully where, for instance, that age is 14, has been treated the same in states where it is higher.

But the text of DOMA’s section 2 includes judicial proceedings concerning same sex unions as acts that states cannot be forced to recognize.

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

The problem with seeking the overturn of this section of DOMA is that plaintiffs must be found who are directly affected, not just speculatively so, though the language about judicial proceedings leaves a large Constitutional hole to drive a truck through.

Of course though the tide seems turned towards gradual near, universal acceptance of gay marriages, a number of states have it within their constitutions prohibiting them. Those are much more difficult to reverse than are mere statues. where activists are fighting for this right.

But that was so back in the days when interracial marriages were prohibited and that didn’t keep SCOTUS from negating them all.

Oh what a glorious sight it be be to see a similar ruling in a same-sex marriage case and watch Scalia go ballistic.

I’d pay to see that.

THE NOT SO HAPPY NEWS ABOUT GAY MARRIAGE VOTES

Tuesday, November 6, 2012 was an historic day for those who are in favor of allowing people of the same gender to marry each other and suffer just like heterosexual couples have been able to do for centuries. (Okay, I’m divorced…but from a wonderful woman. I can make jokes can’t I?)

In any event voters in three states—Maryland, Maine and Washington—approved marriages between gays. It is the first time such ballot issues have resulted in the expansion of gay marriage.

In addition a measure on the ballot in Minnesota that would have banned gay marriage was soundly defeated.

Millions of Americans applaud these new laws, including friends of mine with long term gay relationships and/or marriages. One couple in particular lives in Maryland and had to go to Canada several years ago to formalize and make official the love they have shared for over thirty years.

I am so happy for their happiness over these laws. I can appreciate that many of the legal benefits of marriage previously unavailable to them may now be enjoyed  in the same way that other married couples have been able to enjoy them throughout their lives and that are taken for granted.

Yet there is a an element of these developments that quite disturb me.

I’ll preface my explanation by openly declaring that there should be no question that gay marriage is a simple matter of recognizing the basic humanity of individuals regardless of whom they romantically love.

I suppose if I had been asked if that were my position fifteen or twenty years ago I may not have been quite as adamant in that regard. But in those intervening years I personally have become more exposed to people I know who are affected by this issue. In addition gays themselves, together with their families, have become much more forthcoming…even aggressive…in expressing their experiences of being made to feel they were outsiders, not just to certain exclusionary groups but to the human race.

For the most part gone are the days when open scorn heaped upon gays could be witnessed in almost any context. Of course violence against them was very common. I don’t doubt that violent episodes still occur but…just as in racial bias…prejudice is more likely to manifest in subtler ways.

Instead of physical violence legislative violence was committed. Many states eagerly moved to block gay marriages or refused to ban discrimination of any kind against gays even as more and more gays revealed themselves to be in loving long-term relationships that emulated heterosexual ones.

We have also had the pleasure of hearing stories about gay marriages or from gay couples or from the childen of these relationships told passionately and eloquently and convincingly. Zach Wahls, the young man from Iowa with two loving, nurturing mothers comes to mind.

Human dignity is a precious quality. Demonstrating that quality on a consistently non-violent,  basis was truly the key to the success of Martin Luther King, Jr. and his associates and followers in not only gettting the Civil Rights Act passed but also in garnering greater public acceptance of the basic rights of black Americans.

So it is with gay Americans. But instead of a federal legislative mandate that guarantees their rights, they have had to rely on the whims of voters on election day.

NO…and I do mean NO basic right of human existence should ever be subject to a popular vote.

It is difficult enough to procure the courage of sufficient legislators who will enact protective or corrective legislation. But to submit these same rights to a popular referendum is dangerous.

This election cycle three states had the votes to do the right thing and a fourth had the votes to prevent a wrong thing. But the 800 pound gorilla occupying this room is something called the United States Constitution.

Article IV Section 1 reads

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 reads

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The acts, records and judicial proceedings of some states now include the validation/legalization of marriages between persons of the same gender. The only control Congress has in this regard is to prescribe the manner in which these acts shall be recognized.

But, in 1996, Congress passed the Defense Of Marriage Act (DOMA) with this pertinent provision

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

 

DOMA has been found unconstitutional in several federal courts though The Supreme Court has declined to hear appeals from any such rulings as yet. That may be good news. On occasion SCOTUS will not accept cases where the lower court rulings are clear and there are no conflicting rulings from other courts.

 

Enforcing DOMA invites chaos. The decisions against it involve issues of bankruptcy, immigration, estate taxes, and public employee benefits. Yet the law allows different application of the principles entailing married couples on these issues simply because of the lack of diversity in the gender of the couples.

 

So under DOMA if you reside in Maryland and are a legally married gay couple and move five miles across the border into Pennsylvania which has no such law, you lose all the rights specific to married couples. On the other hand, Pa. recognizes common law marriages (not merely living together…couples must put themselves before the world as married) which entitle the couple to all rights, even absent a formal ceremony or license, and those marriages will be recognized everywhere.

 

The simplest thing would be for SCOTUS to strike down DOMA which is clearly unconstitutional besides being morally bankrupt legislation. Yet, at present our nation is still faced with loving and decent human beings, joined together as a couple, being dependent on lower court rulings, accommodating state legislatures, or the broad-mindedness of the majority of voters in order to be certain that the rights and privileges they enjoy in one state are available to them in all states.

 

Forty-five years ago the ban on interracial marriages was struck down. Those couples in violation could usually be determined by viewing the color of their skin. We still have oppressive laws where one must determine violators by the more invasive examination of their genitals.

 

The people opposing fairness, given the opportunity, would elect to continue the oppression.

 

Do not give these Abominable No-men the chance to do so.

GAY MARRIAGE MAKES ME HAPPY

Last week the state of New York passed a law legalizing the performance of marriages between same gender parties in that state, joining six other states and the District of Columbia in doing so.

That state’s legislators are to be congratulated for doing so even if some of the usual political horse trading and political contributions from interest groups may have been at least partially responsible for this accomplishment.

I have nothing personal to gain from this as I shall confess that I am not gay. But also, at this stage in my life under my current circumstances I have little or no personal stake in the marriage of heterosexual couples. (Ladies, my deepest apologies for your shock and sorrow.)

I do not know many gays, or at least people who identify themselves as such. The ones I am familiar with are—SURPRISE—pretty much the same as my non-gay friends and acquaintances. They work, they love, they worship in their churches, they may even raise children.

The only way they truly and consistently differ is how they conduct their sex lives and express their sexual feelings (even that may be no different in quality). What they do behind closed doors concerns me not a whit.

If for some reason you disagree with me about their right to privacy in their sex lives, please be prepared to detail your own sexual practices as you comment in protest of my opinion.

Now I’m sure many Americans will take comfort from the fact that the state they reside in does not officially permit such marriages and may indeed have taken steps to officially outlaw them.

Well, don’t. There has been so much emphasis on the Constitution the past few years with loud complaints that the federal government has exceeded its Constitutional limits in exerting power. I won’t address that issue, but if you preach adherence to the Constitution, then you must recognize the obligations of all states to acknowledge and accept a marriage legally created in another state, whether that same marriage could have been created there.

Article IV of the U.S. Constitution deals with the rights and responsibilities of the states. Section 1 reads:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof

States have almost always had different requirements to enter into a legally recognized state of matrimony. Some may have an age of consent of 14 while others require the parties to be at least 18, without parental permission.

Some states permit marriages between relatives of as close consanguinity as first cousins while most do not.

Some states permit couples to enter into a “common law” marriage by living together for a given number of years if they give some public indication that their intent is to do so is as a married couple, even with no license. W.Va., among other states, does not permit a common law marriage to be established.

However, for instance, a couple that has established a common law marriage in Pennsylvania that moves to W.Va. does so having all the rights and responsibilities attendant to a legal marriage remaining intact.

Likewise a couple who have married in a state with an age of consent under 18 that now lives in a state which has 18 as the minimum age, and the couple is still under 18, lose no rights nor the validity of their marriage by doing so.

There does exist an abomination known as the Defense Of Marriage Act (DOMA) which is a law passed by Congress in 1996 that essentially defines a marriage as between one woman and one man and further states that a same-sex marriage permitted in one state does not have to be recognized in another state where such marriages are not authorized.

DOMA is clearly and utterly unconstitutional. It violates the provisions of Article IV Section 1 as cited above. Congress cannot unilaterally abrogate a requirement of the Constitution. DOMA is currently under attack in federal court and the Obama administration, in one of its few acts exhibiting balls, has refused to defend it.

There is also talk in Congress about the repeal of DOMA but I’m not holding my breath since that band of idiot brothers cannot even come to agreement on admittedly more vital issues facing the nation.

Why is gay marriage important? Better you should ask “why is breathing necessary for life”? It is important because if you consider marriage as necesssary for the ultimate fulfillment of any heterosexual couple’s love for each other, then you should be aware that gay couples love each other in the same way.

Last year in the runup to the eventual repeal of the Don’t Ask Don’t Tell rules for the military, a young woman  eloquently expressed how thse issues affect her very humanit in an op-ed piece in the Post Gazette. Perhaps her words will be persuasive.

She was homosexual but desired a career in the military and was in a reserve unit. She agonized over being unable to share even the mundane aspects of her every day life with colleagues because it involved a gay partner.

One of the worst aspects of being closeted is not just
feeling like less of a person, but becoming less of a person — less open, less
honest, less trusting.

After several years, I was no longer willing to live in
fear of being found out, or to continue compromising my integrity. I finally
came out to my commander and was subsequently discharged — for “moral and
professional dereliction,” as my Army discharge papers read.

While her discharge was being processed she spoke often with her Commander who did not want to lose her services but had no choice under military law.

He finally understood my point: The person you build a
life with is not a hobby or a “lifestyle” you can just as easily keep private as
not. “Don’t ask, don’t tell” is not about discretion, but the dehumanization of
gay service members simply because of who they love.

http://www.post-gazette.com/pg/10052/1037169-109.stm

So it is with gay marriage. It is nothing more than an affirmation of that couple’s humanity. especially in relation to each other.

A long-time close friend of mine, Harry, entered into a brief hetersexual marriage in 1970. Several years later he emrged from the closet and became openly gay. Still friendly with his ex-wife, he has had a loving and devoted partner for just over thirty years now.

As avowedly straight as I am, my one foray into matrimony or any type of committed relationship lasted just over eleven years officially, though we separated permanently prior to our tenth anniversary. Yet my failure would garner more official recognition in many states than would Harry’s success.

There is no way that is morally right.

To deny Harry and Mark and other loving couples like them their right to formalize and sanctify their arrangement is nothing short of an obscenity. That more opportunities for them and others to do so now exist  is a blessing for this nation and an indication that sanity sometimes rules.

Thank you, New York Legislature.

Let us hope such sanity spreads like wildfire.