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Justice delayed
November 30, 2012 1:14 PM   Subscribe

In a private conference this morning, the Supreme Court of the United Stated discussed ten petitions relating to the Defense of Marriage Act and Proposition 8.

Among the cases that experts expect will be taken this term are:

Windsor v. United States. Plaintiff Edie Windsor and her late partner, Thea Spyer, got engaged in 1967 and lived together for 44 years. They were married in Canada in 2007. In 2009, Thea passed away; because the federal government didn't recognize their marriage, Ms. Windsor was taxed an inheritance tax of over $300,000 because she and Spyer were, according to the United States, legal strangers. In October, 2012 the Second Circuit federal appeals court declared DOMA unconstitutional.

Golinski v. United States Office of Personnel Management: Plaintiff Karen Golinski a federal court employee, sought to add her spouse, Amy Cunninghis, to her employer-provided health benefits plan after they were married in California in 2008. She was unable to enroll her wife for health benefits until the Ninth Circuit Court ruled in February 2012 that DOMA is unconstitutional.

Brewer v. Diaz: Plaintiff Arizonans sued to block an Arizona law that intended to strip lesbian and gay state employees of domestic partner benefits. In 2012, The Ninth Circuit Court of Appeals denied the request of Arizona State officials for an en banc rehearing of the earlier ruling, which maintains family health coverage for lesbian and gay state employees until a court issues a final decision in the case.

Hollingsworth v. Perry: Plaintiffs sued to repeal Proposition 8, the California ballot proposition which passed in the November 2008 elections and stripped California of its marriage equality. On February 7, 2012, a three-judge panel on the Ninth Circuit Court of Appeals issued a 2–1 majority opinion affirming the judgment in Perry v. Schwarzenegger, which declared Proposition 8 unconstitutional, saying it violated the Equal Protection Clause. If the Supreme Court denies cert, same-sex couples will have their right to marry restored within days.

Although SCOTUS took no action today, they could announce issue orders next Monday or December 7th.

Ten things you should know about DOMA and the Supreme Court

SCOTUSblog's four part series.
posted by roomthreeseventeen (93 comments total) 16 users marked this as a favorite

 
I am going to stock up on Xanax now in preparation for the disgusting shit that Scalia is bound to say about this, whatever decisions are reached.
posted by elizardbits at 1:20 PM on November 30, 2012 [19 favorites]


In other SCOTUS news, today the Court announced that it would review the Federal Circuit's ruling in the Myriad Genetics case, which held that technologically isolated human genes are patentable.
posted by eugenen at 1:21 PM on November 30, 2012 [2 favorites]


Although SCOTUS took no action today, they could announce issue orders next Monday or December 7th.

I hate waiting. I spent much of the morning refreshing various SCOTUS-following sites. Gah.
posted by rtha at 1:30 PM on November 30, 2012 [1 favorite]


I hope a few of the five anachronists can evolve, at least a tiny bit. I know evolution is just a theory, but...
posted by Red Loop at 1:44 PM on November 30, 2012


I'm no SCOTUS expert, but it seems likely a majority will get on board the zeitgeist train and strike down DOMA and the state anti-marriage equality laws. Maybe not next week, but certainly by next summer, when they announce all the big rulings.

What next for the march of freedom and equality?
posted by notyou at 1:49 PM on November 30, 2012


...the disgusting shit that Scalia is bound to say about this, whatever decisions are reached.

Yeah...I imagine Scalia's brain will be doing seismic rotations trying to figure this stuff out because, on the one hand, government should not be involved in citizens' personal lives. On the other hand...fags and !!!marriage!!!
posted by Thorzdad at 1:52 PM on November 30, 2012 [18 favorites]


I hope a few of the five anachronists can evolve

Four anachronists!
posted by anotherpanacea at 1:54 PM on November 30, 2012


Lambda Legal's Jon Davidson, via journalist Rex Wockner, on what's next:
1. The Court may announce on Monday that there are additional cases that it has decided to review. There are a number of reasons that the Court may not have felt ready to announce what it is doing today. It could be that the justices needed additional time to craft the language of the order or orders in one or more cases they have decided to hear. (For example, the Court can rewrite the questions they want the parties to address in the case or cases in which they have granted review from the way the parties phrased them in their petitions seeking review.)

2. The Court may announce on Monday some cases it has decided not to review. That might include one or more of the DOMA cases, Perry, or Diaz. Alternatively, the Court could wait to announce anything about any of these cases until the justices are ready to announce what action they have decided to take regarding all of them.

3. The Court may have decided that it needed to discuss the cases further before they can reach their decisions about which cases to hear. The Court's next scheduled conference is next Friday, December 7th. So, it may be that we will all be repeatedly hitting refresh again then (and keeping the dog waiting to be walked) to see if there are orders issued regarding these cases that day.*
posted by ericb at 2:20 PM on November 30, 2012 [1 favorite]


In related news ...

Federal Judge: Nevada Can Bar Gay Couples from Marrying
"In a ruling in Sevcik v. Sandoval made public late yesterday, Judge Robert C. Jones, a George W. Bush appointee, found Nevada's laws limiting marriage to two people of the opposite sex are Constitutional. Among Jones's reasons for the ruling are that gay people are not able to procreate, they are not a politically powerless class, and that gay people having the freedom to marry would actually scare straight couples from entering the institution."
posted by ericb at 2:23 PM on November 30, 2012


gay people having the freedom to marry would actually scare straight couples from entering the institution.?

Wha? I don't even...
posted by ArkhanJG at 2:38 PM on November 30, 2012 [9 favorites]


Yeah I'd totally be afraid of getting married if gays had the same rights I did... wait no that's fucking stupid.
posted by vuron at 2:41 PM on November 30, 2012 [38 favorites]


Yeah...I imagine Scalia's brain will be doing seismic rotations trying to figure this stuff out because, on the one hand, government should not be involved in citizens' personal lives. On the other hand...fags and !!!marriage!!!

scotusblog has some good analysis of Scalia's dissent in Lawrence that goes well beyond the level of "Scalia's a bad person who will surely do bad things." It's worth reading.
posted by The World Famous at 2:42 PM on November 30, 2012 [11 favorites]


People keep telling me I not only want special rights, but special powers. They tell me that I *have* these special powers!

I wish.
posted by rtha at 2:50 PM on November 30, 2012 [11 favorites]


notyou: "What next for the march of freedom and equality?"

I keep saying it, but: ENDA.
posted by jiawen at 2:51 PM on November 30, 2012 [7 favorites]


People keep telling me I not only want special rights, but special powers. They tell me that I *have* these special powers!

Oooh oooh do a magic trick using your gay!
posted by shakespeherian at 3:16 PM on November 30, 2012 [18 favorites]


Federal Judge: Nevada Can Bar Gay Couples from Marrying

Judge Jones is a devout Mormon, and, unsurprisingly, much of his decision reflected general LDS sentiment towards gays and lesbians and how they should be treated in society. One quote highlights the lies this church perpetrates through its activists within the government and through shadow operations like NOM:

It is conceivable, that if gay marriage is legalized, a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently... because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

Lies, lies, lies.
posted by Blazecock Pileon at 3:19 PM on November 30, 2012 [10 favorites]


They tell me that I *have* these special powers!

I felt ... mystically compelled to favorite that. Hail rtha.
posted by MonkeyToes at 3:19 PM on November 30, 2012 [3 favorites]


As The World Famous' link says, this whole issue is simple--will the swing-vote, Kennedy, follow his decision in Lawrence to its logical conclusion or not? He'll either (1) apply its principles consistently to the situation now before him and join the four liberals in striking down all 30-something state constitutional provisions and statutes forbidding the recognition/possibility of homosexual unions, (2) limit it by inventing some distinction between sodomy laws and traditional marriage laws, or (3) overrule it and admit he was wrong to remove states' abilities to govern themselves like either Texas or Washington, i.e., however their residents see fit.

[Does anyone else think the fact that the Court's not sure of which cases to take shows that Kennedy might still be undecided? If he's not inclined to overrule Lawrence like the 4 conservatives would, or apply it like the 4 liberals would--i.e., he chooses something along the lines of "(2)" above--then it's a 4-1-4 and we're left with the status quo of the lower court's decision standing. If that's the situation, that really complicates which petition(s) the Court will grant. If Kennedy were squarely with the liberals or conservatives, we'd have seen some petitions granted today and it wouldn't be that hard.]
posted by resurrexit at 3:20 PM on November 30, 2012 [1 favorite]


What next for the march of freedom and equality?
posted by notyou at 4:49 PM on November 30


Well, we could recognize that women and ethnic minorities aren't fully equal yet, what with legitimate rape and hysteria about abortion about immigrants with brown skin and racism not going away when Obama was elected and what-not. How about we finish what was started there?
posted by magstheaxe at 3:22 PM on November 30, 2012 [1 favorite]


Oooh oooh do a magic trick using your gay!

Go look in the mirror! Are you a frog yet?
posted by rtha at 3:26 PM on November 30, 2012 [11 favorites]


(Frogs are cool, by the way. I wouldn't turn you into something I think is gross.)
posted by rtha at 3:35 PM on November 30, 2012 [5 favorites]


gay people having the freedom to marry would actually scare straight couples from entering the institution

I can imagine that Scalia will vote to uphold this part of the lower court's decision based on the 9¾th Amendment, which states, in part: "The people shall retain the right to pretend to be perfectly safe, and not to have their preconceived notions challenged, at all times."

This amendment also allows the government to do anything it wants to as long as it mentions the word "terrorists" somewhere.
posted by one more dead town's last parade at 3:57 PM on November 30, 2012 [7 favorites]


It is conceivable, that if gay marriage is legalized, a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently... because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

So the thing is, for me and many others, the opposite is actually true-- the lack of marriage equality makes me value marriage less and makes me more embarassed and less interested in being associated with it.

Does anyone know if this argument has been made in any legal cases? Or other ways it's been used in the fight for marriage equality? While the lack of marriage equality first and foremost obviously harms gay couples, I do feel that it also hurts me by devaluing and undermining my straight marriage... and it's frustrating that it seems like the only way that anyone talks about the impact of marriage equality on straight marriages is either negative or neutral. I'd love to see a stronger counter-narrative against those folks who claim they're speaking for and acting on behalf of straight marriages.
posted by EmilyClimbs at 3:58 PM on November 30, 2012 [11 favorites]


the lack of marriage equality makes me value marriage less and makes me more embarassed and less interested in being associated with it.

I know real people who have foregone a legal marriage on principle, because beloved members of their families are unable to enjoy the same rights.

A "meaningful percentage of heterosexual persons" (to use the judge's language) already cease to value the civil institution as it is, but I don't see how he can blame Britney Spears for everything.
posted by ambrosia at 4:04 PM on November 30, 2012 [5 favorites]


Go look in the mirror! Are you a frog yet?

I am trying but I can't seem to reach the countertop with anything but my elongated tongue.
posted by shakespeherian at 4:08 PM on November 30, 2012 [7 favorites]


I'm curious why none of the suits have challenged DOMA on the Full Faith and Credit Clause.

The 'states rights' position seems paradoxical. One can't argue for the right for a state to determine laws for its citizens (drivers licenses for example) then say the laws of another state (inheritance for example) apply - except regarding marital status.

'Sorry Timmy, your daddy was only licensed to drive in Vermont. Here in Alabama we don't recognize his right to drive. So he was driving illegally. And you don't get any money from the truck that crushed him after running a red light going the wrong way down the street.'

resurrexit: Re:(1) if the states can re-criminalize the intimate lives of gay folks, wouldn't they have to prove that A. sex occurred and B. marriage is predicated on sex?
Pretty dicey for Scalia's argument (and thanks for the link The World Famous) if you have to say you have to have sex in order to be married (what with the elderly and medically incapable).
So then you have to use taxpayers dollars to check up on married gay couples to prove they're not having sex.
What if nothing happens? What if two completely celibate but same sex people wanted to get married? It reveals the idiocy of the blue laws in encroaching on practical legal matters.

It irks me that the assumption is the state can deny someone equal rights based on what one imagines goes on in their bedroom (or jacuzzi if they went to Catholic school).

shakespeherian, at least you're not a bear. Never has there been a frog hopping toward me, and I thought "man, I'd better play dead. Here comes that frog..."
You never say "here comes that frog" in a nervous manner. It's always optimistic: "Hey here comes that frog, al-right." /hedberg
posted by Smedleyman at 4:26 PM on November 30, 2012 [1 favorite]


shakespeherian, at least you're not a bear.

hey!
posted by hippybear at 4:53 PM on November 30, 2012 [12 favorites]


I honestly don't know how there can be a plausible, reasonable legal argument made against equality at this stage of the game, or anything that won't sound like that Trump-level nonsense from the Nevada judge.
posted by Red Loop at 5:07 PM on November 30, 2012 [2 favorites]


It is conceivable, that if gay marriage is legalized, a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently... because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

So the thing is, for me and many others, the opposite is actually true-- the lack of marriage equality makes me value marriage less and makes me more embarassed and less interested in being associated with it.
posted by EmilyClimbs

I am a straight male and I won't get married to my long time partner. We no longer see it as an institution worth supporting. We both believe everyone should be treated equally. We stand with those who cannot get married. I know it doesn't mean much to anyone else. And my children are learning from our stance on equal rights, too.
posted by Nadie_AZ at 5:12 PM on November 30, 2012 [8 favorites]


The cynic in me thinks the SCOTUS will uphold gay marriage bans. The optimistic side thinks that any justice with a sense of history realizes that at some point in the future the US will allow gay marriage nationwide, and to stand in it's way right now would be like having their names attached to despicable rulings of the court's past.
posted by drezdn at 5:24 PM on November 30, 2012 [2 favorites]


Going by their recent rulings, won't the Supreme Court try to make the narrowest ruling possible?
posted by jiawen at 6:16 PM on November 30, 2012


Say what you want but my heterosexual marriage is in serious jeopardy due to the gays, specifically Jürgen and Klaus from across the street

those washboard abs
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 6:25 PM on November 30, 2012 [9 favorites]


SC will say they won't hear any of them *at all* and issue a rejoinder as to 'who is harmed and how much?' I don't think the case has yet been made that federal non-recognition of gay marriage rights has a ($$) materially discriminatory aspect to it, in terms of quality-of-survivor's life. Don't be hating, please. There needs to be a cogent argument about economic harm done to same-sex marrieds and committed-life-partners under Equal Protection and it hasn't happened yet. Until that happens, there's no concrete hope that DOMA will be shot down.
posted by nj_subgenius at 6:46 PM on November 30, 2012


I don't think the case has yet been made that federal non-recognition of gay marriage rights has a ($$) materially discriminatory aspect to it, in terms of quality-of-survivor's life. Don't be hating, please. There needs to be a cogent argument about economic harm done to same-sex marrieds and committed-life-partners under Equal Protection and it hasn't happened yet.

I think that that has happened! I will copy-and-paste

Which federal rights and protections does Section 3 of DOMA deny to same-sex married couples?

Federal law excludes legally married same-sex couples and their children from the biggest programs our government offers to support and protect families and denies them important federal rights and protections, including:
 The right to take time off from work to care for a seriously ill spouse through the Family Medical Leave Act; Access to all the benefits of a spouse’s health plan, without a tax penalty; Medicaid preventions against elder homelessness when one spouse goes into a nursing home;
 Social Security spousal and survivor benefits related to disability, care of a minor child, retirement, and death, which protect a family’s economic security in old age, and upon disability or death
 The right to leave assets to your spouse – including the home you share together – without incurring a tax penalty;
 Joint tax filing and pooled deductions that can save families money;
 Retirement and death benefits for spouses of federal employees;
 Disability, dependency or death benefits for the spouses of veterans and public safety officers;
 The ability to sponsor a non-resident spouse for purposes of immigration.


That's just the federal stuff, there is state discrimination permitted by the law also. Why do you not think these things qualify as material ($$) discrimination?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 7:14 PM on November 30, 2012 [6 favorites]


A look back at Justice Scalia’s dissent in Lawrence v. Texas, nine years later
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
posted by kirkaracha at 7:30 PM on November 30, 2012 [3 favorites]


Somehow we've got to get a case in front of Scalia about whether corporations can marry.
posted by George_Spiggott at 8:47 PM on November 30, 2012 [15 favorites]


I'd rather we didn't open that can of worms George.
posted by evilDoug at 10:47 PM on November 30, 2012 [1 favorite]


People keep telling me I not only want special rights, but special powers. They tell me that I *have* these special powers!

It's a bit late, but...you can be gay, if we get to use your gay powers!
posted by Owain Blackwood at 11:03 PM on November 30, 2012


The same sex love of my life is keeping me awake and driving me crazy tossing and turning because he can't get comfortable. We've adjusted the mattress and pillows three times now.

Did I scare any of you straight people out of marriage?

BOO!

How about now?


(Seriously, though, I can't wait to see what they may or may not choose. It's weird in these days of stats and too much blog reading that I have no clue what will happen next.)
posted by MCMikeNamara at 11:14 PM on November 30, 2012 [5 favorites]


I am a straight male and I won't get married to my long time partner. We no longer see it as an institution worth supporting.

My man and I have been talking about this a lot lately; we're interested in partnership but are not entirely comfortable with the institution of marriage. I'm not sure if we'll choose to get married or not, but it's likely that if we don't it will be both because we're uncomfortable with the historical legacy of marriage and believe that the current version of it carries too many connotations of a patriarchal, heteronormative society that we can't buy into it. I explicitly identify as queer or pansexual, and my man has some queer leanings himself, and though our relationship does give us the privilege that heterosexual couples have, I don't know if we'll be comfortable marrying and taking advantage of that privilege.

I think that the advocates against same sex marriage are big parts of why the idea of marriage is bagged down in so much social bullshit. Constantly reinserting the idea that marriage is for the creation of children and that marriage is a religious institution makes people who are not planning to have children or who are not religious value it less; seeing the word "marriage" claimed so often by those who are obvious bigots makes my man and me not want to associate ourselves with it.
posted by NoraReed at 11:38 PM on November 30, 2012 [1 favorite]


For many years, I was one of the people in a committed straight relationship who refused to marry in part because of the discrimination against gays, and in part because I perceived it to be a religious thing that just happened to also be a subject of US law.

I can't say exactly what changed my mind, but around a year ago I got married in a nice (but tiny) civil ceremony conducted by a retired judge, and now I'm proud to be a straight-married person who supports gay marriage and secular marriage.

On the other hand, I'm a little sad that my 17-year committed relationship is now merely a single year of marriage.
posted by jepler at 5:31 AM on December 1, 2012 [1 favorite]


I don't think the case has yet been made that federal non-recognition of gay marriage rights has a ($$) materially discriminatory aspect to it, in terms of quality-of-survivor's life.
Are you joking?

The post text itself has one such example. In my personal life, I might like to be on my boyfriend's health insurance, but if I were, whatever his employer paid for my healthcare would be treated as taxable income by the federal government. If we were a married straight couple, it would not. That case has long since been made. No one is seriously arguing that we're not hurt by lack of marriage equality, they're instead arguing that the state has a legitimate interest in so hurting us.
posted by kavasa at 6:26 AM on December 1, 2012 [1 favorite]


"Project 1138 is designed to increase public awareness of the 1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."

And here's a small subset of the 1,138 benefits, rights and protections provided on the basis of marital status in Federal law.
"Filing joint income tax returns with the IRS and state taxing authorities.

Creating a 'family partnership' under federal tax laws, which allows you to divide business income among family members.

Inheriting a share of your spouse's estate.

Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.

Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.

Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Receiving Social Security, Medicare, and disability benefits for spouses.

Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.

Receiving public assistance benefits.

Obtaining insurance benefits through a spouse's employer.

Taking family leave to care for your spouse during an illness.

Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.

Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.

Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Consenting to after-death examinations and procedures.

Making burial or other final arrangements.

Filing for stepparent or joint adoption.

Applying for joint foster care rights.

Receiving equitable division of property if you divorce.

Receiving spousal or child support, child custody, and visitation if you divorce.

Living in neighborhoods zoned for 'families only.'

Automatically renewing leases signed by your spouse.

Receiving family rates for health, homeowners', auto, and other types of insurance.

Receiving tuition discounts and permission to use school facilities.

Other consumer discounts and incentives offered only to married couples or families.

Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).

Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).

Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.

Receiving crime victims' recovery benefits if your spouse is the victim of a crime.

Obtaining immigration and residency benefits for noncitizen spouse.
posted by ericb at 10:25 AM on December 1, 2012 [6 favorites]


I'd love to see an effort based on the right to privacy, specifically with respect to the status of your sex. In my opinion the government has no business knowing what sex I am. These identifiers should be purged from licenses, passports, birth certificates, etc., and as a consequence there should be no way for rights to be filtered based on that status.
posted by odinsdream at 11:08 AM on December 1, 2012 [5 favorites]


odinsdream, I can't imagine that flying. For the majority of persons, sex is easily identifiable once you step out in public, and there's also no broad tradition of privacy with respect to sex or gender. It's generally assumed that such knowledge is fairly public. In fact, a great deal more information than that is generally considered to be available information. Police officers, for example, aren't violating your 4th amendment rights when they approach you on the street and ask for your identification. Remember also that the "right to privacy" is an implied one, it's not explicitly stated in the constitution.
posted by kavasa at 2:36 PM on December 1, 2012


I know real people who have foregone a legal marriage on principle, because beloved members of their families are unable to enjoy the same rights

Conversely, my sister and her boyfriend of 15+ years have recently announced they're planning to marry next year; she says one thing that pushed them over the edge is that all their gay friends are already, or are getting, married. (I had to check whether jepler was one of them…)
posted by hattifattener at 10:42 PM on December 1, 2012 [1 favorite]


kavasa, justice is not for just the majority.

There's a difference between something being public knowledge and something being required as part of your government issued identification documentation. Sex is not at all as readily identifiable as your comment would indicate. A good portion of the populace is intersex or trans; these people are made completely invisible by the backwards requirement that one of two boxes be checked on documents where sex should have no bearing. Socially we expect a person to simply come with this marker, and get very upset when it isn't known, though there are only very limited situations where the designation actually matters. Moreover, it seems that the anti-gay marriage folks routinely conflate sex and gender, and as far as I've seen are completely unaware of intersex people. All of these aspects and their definitions become very important when we start doling out rights based on a particular marker.

Suggested reading: Between XX and XY, and Whipping Girl.
posted by odinsdream at 6:19 AM on December 2, 2012 [3 favorites]


Sir, I'm aware of all that, really. I said "the majority" because that's the accurate truth. Unless you're arguing that in current American society, more than 50% of the people you see have an indeterminate sex?

What I'm trying to indicate to you is that, right now, American law doesn't work the way you seem to think it does.

If you brought your argument before the SCOTUS, you'd have to make an argument that persons have a "reasonable expectation of privacy" with regards to their gender and/or sex and that the state has no legitimate interest in violating that expectation. If your vision of privacy were accepted, then we'd start having to ask some really broad questions about this new scope of privacy. For example, police can currently just go through someone's trash without asking or getting a warrant, because it has been decided that you have no reasonable expectation of privacy once it's been put out on the street. If in fact you can have such an expectation about your sex, even though you presumably walk around in full view in public sometimes, then when does privacy stop? The fact that some people may be wrong about your sex/gender, or that our standard binary system is insufficient, does not affect the fact that for most people, most of the time, the fact of your sex is not something that anyone ever expects to be a well-kept secret.

Just because some people might put a padlock on their dumpster, or get a trashcan designed to look like a lawn decoration, doesn't mean the police have to get a warrant to search everyone's trash. Keeping in mind that analogy is not proof - I'm using the trash thing as an example to try to help you get a better understanding of the phrase "reasonable expectation of privacy."

It just seems like you're trying to take cultural or intellectual position (and one, btw, that I largely agree with) and applying it to the complex web that is American constitutional law without any regard for how that would play out and without having read (even as a lay person) any of the opinions from previous relevant cases.
posted by kavasa at 8:26 AM on December 2, 2012 [1 favorite]


odinsdream writes " In my opinion the government has no business knowing what sex I am. These identifiers should be purged from licenses, passports, birth certificates, etc., and as a consequence there should be no way for rights to be filtered based on that status."

I don't think unisexual public washrooms are going to fly in the US any time soon.
posted by Mitheral at 10:18 AM on December 2, 2012


I don't think unisexual public washrooms are going to fly in the US any time soon.

Legal sex status has nothing to do with this.
posted by odinsdream at 11:06 AM on December 2, 2012


If in fact you can have such an expectation about your sex, even though you presumably walk around in full view in public sometimes, then when does privacy stop?

The belief that people accurately have any idea about the sex of others they randomly encounter is entirely false. What people may have is a somewhat accurate idea of their gender presentation, which is entirely separate, though of course statistically usually ends in the same place. This misunderstanding has resulted in the idea that all documentation relating to a person should include that little M or F somewhere on it, and from that expectation stems a number of things I find problematic. I've seen no convincing reason why the government should be able to legally document a person's sex, and the fact that rights are continually denied based on that status leads me to the conclusion that in fact this bit of information continues to disadvantage real people I would definitely be interested in reading more about this, if you can suggest some materials. I do indeed think that my sex is a private matter, even if people regularly assign a gender to me in public. I don't see these two things as incompatible. I very strongly believe it is none of the government's business.
posted by odinsdream at 11:15 AM on December 2, 2012 [1 favorite]


If you remove all legal record of sex from government record there isn't any way to enforce bathroom segregation. Defacto desegregation of women's bathrooms at least immediately follows.
posted by Mitheral at 11:16 AM on December 2, 2012


OMG NO NOT UNISEX BATHROOMS! Withering hamburger.
posted by prefpara at 11:26 AM on December 2, 2012 [2 favorites]


To be clear I don't care one way or another and the engineer in me hates the inherent inefficient resource allocation of segregated bathrooms. I was just saying I didn't think you could sell unisex bathrooms in the "Think of the Children!" USA of today.
posted by Mitheral at 11:34 AM on December 2, 2012


If you remove all legal record of sex from government record there isn't any way to enforce bathroom segregation. Defacto desegregation of women's bathrooms at least immediately follows.

I truly apologize, but I cannot tell if you mean this seriously. If you do, please let me know the last time someone was checking your ID before letting you in a restroom somewhere.
posted by odinsdream at 1:54 PM on December 2, 2012


I very strongly believe it is none of the government's business.
The Supreme Court's response is going to be "your belief is not reasonable in light of the previous 200 years of case law that has developed the implied right to privacy and the grounding in English common law before that."

The Wikipedia article on the expectation of privacy is a good place to start.

Lawrence v. Texas is a decent illustration of this principle in action.

I agree with you that gender is performance and it's bullshit and the current binary sex system hurts people and etc. That doesn't mean it's a sound legal basis for marriage equality, because it isn't. Most of the time, most people can correctly determine the sex of most other people on the basis of plain sight/plain hearing in public places. The fact that sometimes those determinations are wrong or hurtful simply doesn't make sex private in a strictly legal sense.
posted by kavasa at 2:20 PM on December 2, 2012 [2 favorites]


I agree with you that gender is performance and it's bullshit ...

With respect, this is not my position.

Most of the time, in fact, no, most people cannot determine the sex of someone in public. They can determine their gender presentation, which, as I stated, statistically aligns most of the time with that person's sex. Their actual sex is a private medical matter, determined, if such a determination can be said to be possible, by a number of physiological factors. Few if any of these factors are on display when you walk through a coffeeshop.

Medical privacy has already been recognized in law. Your authorization is required if, for example, your employer asks your doctor whether or not you have a particular disease. You should have just as much privacy to medical information about your genitals, chromosomes and hormones as you do about your heart conditions or cancer diagnoses.

The existing medical privacy laws already restrict the government in a similar manner. I'd be very interested in any reading material you could share that posits the government does have a practical reason to officially document every citizen's sex.
posted by odinsdream at 4:27 PM on December 2, 2012 [1 favorite]


With respect, this is not my position.
Bluh?

I mean, as far as I can tell gender is absolutely performance. Colors of clothes you can wear, acceptable professions, who you can hold hands or associate with, what your hobbies can be, how you can talk, on and on and on: the list is endless and it varies from culture to culture. "What makes a man/woman" is never a question with the same answer, so how can it be anything other than performance?

From that, we punish everyone that's bad at performing their gender, which is the part I call "bullshit."
which, as I stated, statistically aligns most of the time with that person's sex
That's all it takes. The rest of your stuff is just irrelevant to real-world law. It's like your hair color: the government doesn't need a practical reason to "officially document every citizen's" hair color. Nor does it need one for sex. Nor does it do either of those things! But if you can just look at a person and say "his hair is brown," then your plan to get a law struck down by saying "my hair color is PRIVATE" is not going to fly because it is not, in any sort of practical sense of the word, actually private. Even if some people dye their hair, or people with auburn hair get unfairly lumped in with brown, or whatever.

Analogies are not perfect, but you really need to check that wiki article on the expectation of privacy:
In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there are no privacy rights in garbage left for collection in a public place.[2] Other examples include:[dubious – discuss] account records held by the bank, a person's physical characteristics (including blood, hair, fingerprints, fingernails and the sound of your voice)
Physical sex is absolutely something "held out to the public," and your objection that "sometimes people are wrong about it" does not change that fact. You can not just walk into the SCOTUS - or any court - and say "change this! Because I think it should be different!" It just don't work.
posted by kavasa at 10:12 PM on December 2, 2012 [2 favorites]


[W]ill the swing-vote, Kennedy, follow his decision in Lawrence to its logical conclusion or not?

I still have my doubts that Kennedy will approach any cases this year with a level head, especially big ones like gay marriage. All of the hoopla over Obamacare made it sound like he was really petty and might have a vendetta against either the left wing of the court, Roberts, or possibly both.
posted by zombieflanders at 8:02 AM on December 3, 2012


I didn't think you could sell unisex bathrooms in the "Think of the Children!" USA of today.

Well, but...

This reminds me of my beef with gays in the military and housing. I'm perfectly fine with the former. But why can two guys room together and people of opposite sex can't?
Although that's changing too.

There should be equability in privacy and sexual rights regardless of what form those rights take. Perhaps that means more stalls.
I tend to go 'shy guy' anyway, particularly at ball games. There's way too much splash back in the troughs and urinals. I don't know who designs those, but he didn't have in mind guys with healthy prostates. So if I hit the urinal I have to stand a good distance back.
Talk about being held out to the public.

Ursula K. LeGuin has written some interesting stuff on gender worth reading.
posted by Smedleyman at 8:10 AM on December 3, 2012 [1 favorite]


Bluh?

I mean, as far as I can tell gender is absolutely performance.


It's simply not my position, which I wanted to clarify. I understand you're stating your position, that's fine. I wanted to try and be clear about mine, which is more closely aligned with the positions stated in the book I mentioned earlier, Whipping Girl, which covers some of the problems with considering gender simply to be a "performance."

With respect to sex, I'll again state my position that the details of anyone's genitals, reproductive system, hormone levels, and chromosomes are private medical information. Which of these particular things do you not believe is private?
posted by odinsdream at 12:57 PM on December 3, 2012


If you remove all legal record of sex from government record there isn't any way to enforce bathroom segregation.

Bathroom segregation in the United States is not enforced by the government, last I checked.
posted by The World Famous at 1:52 PM on December 3, 2012


Sure it is (and arguably they weren't even using the wrong bathroom).

Or one of my favourite abuses of police power: arrested for resisting arrest after entering wrong bathroom.

These cases aren't hard to google for.

Smedleyman writes "Well, but..."

Those are all (or mostly all, I didn't see any that don't fit this description) either relabeled handicap bathrooms or a row of the same labeled as family use. Which is pretty awesome when I'm escorting my daughter (and I don't hesitate to use a handicap bathroom that isn't labeled that way) but it isn't the norm of a huge communal space with a row of urinals (or even a trough *shudder*). Nothing but individual unisex bathrooms would be great but are vastly more expensive and the conversion costs would be horrendous so I don't see that conversion happening any time soon.
posted by Mitheral at 6:34 PM on December 3, 2012 [1 favorite]


Or one of my favourite abuses of police power:

Indeed. Abuses of police power.
posted by The World Famous at 6:38 PM on December 3, 2012


Mitheral, those are cases of gender presentation being policed with respect to bathroom use, not sex.
posted by odinsdream at 7:50 PM on December 3, 2012


That's a meaningless hair split in the case of whether people having to use the "right" bathrooms is being enforced by the state.
posted by Mitheral at 8:17 PM on December 3, 2012


Definitions matter. One thing is on your license, the other isn't. Let's say the trans woman who got beat up in the McDonalds had an F on her license. The result would be the same, as in nearly all of these situations. The legal sex status is not relevant to the issue, because nobody is checking that. What they are checking is appropriate gender presentation.
posted by odinsdream at 8:33 PM on December 3, 2012


Ya, like a said: The US isn't ready for integrated bathrooms.
posted by Mitheral at 9:35 PM on December 3, 2012


Yes, culturally, the U.S. is not interested in eliminating separate restrooms for men and women. Legally, however, there's really nothing stopping us from doing so.
posted by The World Famous at 9:59 PM on December 3, 2012


Looks like BOTH the 2nd Circuit Windsor case, applying strict scrutiny to sexual orientation, AND the Prop 8 Perry case. And it now looks like there is a serious question of standing in Perry? Ugh.
posted by likeatoaster at 12:16 PM on December 7, 2012


And they are now taking review. Here's the link to the SCOTUS blog.

I hope this is a good thing. I'm not at all sure. It all turns on Kennedy, I predict.
posted by bearwife at 12:37 PM on December 7, 2012


From SCOTUSblog: "The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues."
posted by MonkeyToes at 12:38 PM on December 7, 2012


Eh, maybe. Looks like they are leaving themselves a window to throw both cases out of court on procedural grounds, which would be a huge setback not only for gay marriage but also for social justice lawyering in general.

On the other hand, they bypassed what was probably a tempting option of granting cert in the 1st circuit, where one of the liberals (Kagan) would have had to have recused.
posted by likeatoaster at 12:39 PM on December 7, 2012


There are a lot of complex issues here. A. Gay Marriage (1) did the earlier substitute plaintiffs have standing? (if not lower court, full constitutional decision holds); (2) if earlier substitute plaintiffs had standing, then (a) should the District Court's decision declaring gay marriage unconstitutional on due process grounds be upheld?; (b) should the 9th Circuit's decision (on the narrow basis of granting a right and then taking it away in discriminatory fashion be the basis for decision (yes on this would invalidate Prop 8 and say nothing about gay marriage nationally).

B. DOMA (1) does the lower court's agreement with the Defendants (the US government) that DOMA is unconstitutional strip the Supreme Court of jurisdiction (this would mean DOMA might be unconstitutional from the get go); or (2) Is DOMA itself unconstitutional under the full faith and credit clause.
posted by Ironmouth at 1:47 PM on December 7, 2012 [1 favorite]


Here's my prediction, apropos of absolutely nothing:

They will decide the substitute plaintiffs have standing in California and invalidate Prop 8, so gay marriage in California is a go.

But eventually punt on anything bigger using the merits question.

But, re-reading everything as an amateur, I now wonder is that even possible? What are they deciding when it comes to the merits of Windsor?

Since the Executive Branch as it currently stands agreed with the lower courts, how does that determine whether or not the Supreme Court has jurisdiction? Is this also about who brought the case? (Or didn't, I guess) I don't understand how, even though Obama has come out as opposed to DOMA, since the Obama Administration’s Justice Department did originally take it to the court why they wouldn't have jurisdiction.

Sorry for the begging for explanation. I've spent some time thinking about it when I realized I should just ask the folks here to explain it to me in general Metafilter-level explanations.
posted by MCMikeNamara at 2:23 PM on December 7, 2012


The fact that this isn't simply a slam-dunk in favor of equality is just fucking sad.
posted by Benny Andajetz at 2:29 PM on December 7, 2012 [2 favorites]


One more thing though:

From SCOTUSBlog:

The arguments very likely will be March 25-27, and a decision is very likely around June 27.


Depending on the accuracy of that prediction and the scope of the decision, the timing couldn't be more appropriate.
posted by MCMikeNamara at 2:31 PM on December 7, 2012


Risk to Same-Sex Marriage "Very Great" in Supreme Court (emphasis mine)
The DOMA case asks the justices to strike down the federal law that dictates which marriages are valid. Even better for supporters of same-sex marriage: Of the several DOMA cases the court could have taken, it decided on Windsor v. United States, in which plaintiff Edith Windsor was unable to claim an estate-tax deduction after her female partner died. Between striking down part of a heavy-handed federal statute and helping someone get a tax cut, it's the kind of same-sex marriage case even a conservative justice could love. Most importantly, from the point of view of getting the requisite five votes, striking down DOMA would not prevent states from banning same-sex marriage.

The Prop. 8 case argues something much broader, however: It claims there is a fundamental right to same-sex marriage in the Constitution, and that any attempt to ban same-sex marriage violates the 14th Amendment. The Ninth Circuit's ruling was written so narrowly that if the Supreme Court had decided not to take the case, then the Ninth Circuit's decision would have affirmed the rights of same-sex couples in California alone. But if SCOTUS were to affirm the constitutionality of California's ban on same-sex marriage, the ruling could well apply to any such law nationwide.
[...]
Still, [Kennedy and Roberts] are conservative by nature, and up until November no state had recognized same-sex marriage rights by popular vote. Roberts and Kennedy could well prove sympathetic to conservative arguments that finding a right of same-sex couples to be free of discrimination amounts to "forcing" same-sex marriage on everyone else. It seems entirely possible that the court could side with marriage equality in the DOMA case while rejecting the argument that same-sex couples have a constitutional right to marry the person they love.

On the other hand, both justices have to know that the country is starting to lean towards marriage equality, so they may be disinclined to issue a broad ruling in either direction. (According to SCOTUSBlog's Lyle Denniston, the court has potential exit strategies in both cases—it could avoid any major decisions by ruling on legal technicalities.) Even in the worst-case scenario, public opinion is trending quickly enough that any setback, no matter how painful, would probably be temporary.
posted by zombieflanders at 2:47 PM on December 7, 2012


So if they declare the DOMA unconstitutional, but don't rule on Prop 8 it just makes it solely a states rights thing right? Same-sex couples in say Washington would still get all the federal benefits of marriage?
posted by DynamiteToast at 2:58 PM on December 7, 2012


One cheery thing which Boring Postcards pointed out to me on Twitter, and which I had not known before, is that John Roberts has a surprising history regarding Colorado gay rights litigation.
posted by bearwife at 3:57 PM on December 7, 2012


It seems entirely possible that the court could side with marriage equality in the DOMA case while rejecting the argument that same-sex couples have a constitutional right to marry the person they love.

I don't understand this rationale. The plaintiff's argument is that the Equal Protection Clause prohibits DOMA. Surely if they are successful, it means that the equal protection clause prevents the prohibition of gay marriage. Based on the supremacy of the constitution, that seems like the end of the story. While I'm sure it is technically possible for the court to do this, it doesn't seem logically possible.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:13 AM on December 8, 2012 [1 favorite]








In the case of Windsor, why has the court asked to be briefed on “whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court [i.e., the US Supreme Court] of jurisdiction to decide this case”?
posted by jepler at 7:14 AM on December 10, 2012


In the case of Windsor, why has the court asked to be briefed on “whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court [i.e., the US Supreme Court] of jurisdiction to decide this case”?

As a Court watcher, I speculate that this is for two reasons: 1) Roberts has been riding herd on the Solicitor General's office. I think he feels strongly that the Executive is supposed to defend the law. 2) It's an interesting and in some ways vital question. Judicial review rests in great part on Marshall's assertion in Marbury v. Madison that It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. But if one of the other two branches of government charged with upholding a law believes it is unconstitutional and declines to carry it out, then is there a justiciable dispute for the Court to decide? That is to say, it is arguable that if either of the other two branches conclude a law is unconstitutional, the Court doesn't have a live dispute to adjudicate. This seems like an inherent, if rarely exercised, power of constitutional review housed in the other two branches of government.
posted by bearwife at 9:43 AM on December 10, 2012


Wouldn't the "live dispute" here stem from the executive enforcing the law (which it has done in the case before them, and as I understand it is now doing in other situations that arise), regardless of whether the executive has offered an opinion on the constitutionality of the law?

Or is the problem here that I'm cutting off the rest of what is ordered to be briefed and argued: “[…] and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”—i.e., if nobody with standing is appealing the lower court's decision, then the Supreme Court has no jurisdiction?

Should I understand “the Executive Branch's agreement” to mean the lack of an appeal by the Executive of the lower court's ruling, rather than as referring to the public statements of the Executive about the constitutionality of DOMA? If so, this makes a little more sense to me, having read about "appellate jurisdiction". But in that case, it seems like one might as well dispense with the first part and simply say to brief and argue whether the BLAG has standing to appeal.
posted by jepler at 5:15 PM on December 10, 2012


There are two connected procedural issues here. A live dispute must be present in the case before the Court, not based on what a party is doing elsewhere. And if the Executive doesn't disagree with the lower court ruling, and the party that does lacks standing, there's no live dispute.
posted by bearwife at 5:43 PM on December 10, 2012 [2 favorites]




How would John Roberts rule on gay marriage cases?

Richard Socarides | The New Yorker:
"If he rules against gay rights now, how is Roberts going to feel about the overturning of this precedent later—or having it overturned while he is still on the Court as Chief? That’s not to say public opinion is the only factor here. But the Supreme Court has previously held that marriage is a fundamental right, and sexual orientation, especially when viewed from today’s perspective, meets all the requirements for heightened constitutional scrutiny."
posted by ericb at 2:22 PM on December 11, 2012


Justice Scalia Defends Comparing Homosexuality To Murder

He said that comparing the two constitutes the logical fallacy of reduction to the absurd. As much as I disagree most of the time with Scalia's legal reasoning, that thinkprogress.org article is clueless and idiotic.
posted by The World Famous at 2:32 PM on December 11, 2012


From homoculus' link:

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.

Then he deadpanned: “I’m surprised you aren’t persuaded.”


And from US News

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,' " Scalia said. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

So the parallel he's drawing is that we have moral feelings about things, and that is the proper basis on which to decide what should and should not be illegal. If some version of "we" thinks something is immoral (murder, dancing, drinking alcohol, fucking children, burning down your neighbor's house), then that's a good enough reason to make something illegal? That may be a reason, but I don't believe it should be the only reason.
posted by rtha at 3:23 PM on December 11, 2012 [1 favorite]


Sorry, homunculus! I really do know how to spell your name!
posted by rtha at 3:49 PM on December 11, 2012


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