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SCOTUS Hears Oral Arguments in Prop 8 Case
March 26, 2013 9:54 AM   Subscribe

Earlier today, the Supreme Court heard oral arguments in the California Prop 8 case, Hollingsworth v. Perry. SCOTUSblog has a round-up of their analysis of today's arguments here. NYT article. LA Times article.

The full audio of today's arguments and an unofficial transcript are available on the Supreme Court website.

For background information on the case, see SCOTUSblog's Perry page here.

Previously.
posted by insectosaurus (398 comments total) 34 users marked this as a favorite

 
I was outside this morning. Great scene--lots of happy, hopeful folks.
posted by MrMoonPie at 9:56 AM on March 26, 2013 [2 favorites]


I recommend The Guardian live blog for interesting details/updates.
posted by ericb at 9:57 AM on March 26, 2013 [3 favorites]


SCOTUSblog is not super optimistic. Question: How is it that, once again, it all depends on what Anthony Kennedy had for breakfast? There's got to be a better way.
posted by leotrotsky at 9:59 AM on March 26, 2013 [2 favorites]


Hold argument after lunch?

This is what happens when every single function of government divides along party lines - in the land of partisanship, the indecisive jerkass is king.
posted by Holy Zarquon's Singing Fish at 10:01 AM on March 26, 2013 [9 favorites]


@SCOTUSblog: Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.

The Courage on display here is overwhelming. Truly inspiring. ------------> #hamburger
posted by (Arsenio) Hall and (Warren) Oates at 10:02 AM on March 26, 2013 [7 favorites]


Flashback: How the Media Kept Blowing It on Obamacare.
posted by ericb at 10:02 AM on March 26, 2013 [2 favorites]


Dismissing the case would be a fantastic outcome. I would be so thrilled - the 9th Circuit decision was great, and would love it if that stands as the final decision. I could get legally married!
posted by insectosaurus at 10:02 AM on March 26, 2013 [5 favorites]


Ugh. Grow a fucking spine, Kennedy.

I did like this exchange highlighted in one of the blogs: (eat shit, Scalia)
Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?

Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.
posted by kmz at 10:04 AM on March 26, 2013 [28 favorites]


Dismissing the case would be a fantastic outcome. I would be so thrilled - the 9th Circuit decision was great, and would love it if that stands as the final decision. I could get legally married!

It's definitely not the worst outcome. But such a ruling would be a states-right thing instead of a federal thing, I believe. So, good for Californians, but not the leap that many SSM proponents were hoping for.
posted by (Arsenio) Hall and (Warren) Oates at 10:04 AM on March 26, 2013


Rob Reiner Does Not Believe in Equal Line Rights.
posted by Capt. Renault at 10:04 AM on March 26, 2013


NYT has a good infographic that explains the consequences of the court issuing various rulings in the two cases in front of it, which addresses the states vs federal rights matter.
posted by Blazecock Pileon at 10:05 AM on March 26, 2013 [22 favorites]


Dismissing the case would be a fantastic outcome. I would be so thrilled - the 9th Circuit decision was great, and would love it if that stands as the final decision. I could get legally married!

If the case is dismissed for a substantive reason, rather than the court just deciding they don't want to decide it after all, that would vacate all lower courts' rulings. Prop 8 would still be overturned, but the 9th Circuit ruling would not stand.
posted by Holy Zarquon's Singing Fish at 10:05 AM on March 26, 2013 [1 favorite]


Soundcloud version of the Oral Argument at the Supreme Court about Prop.8 and Marriage Equality [1:19:59].
posted by ericb at 10:06 AM on March 26, 2013 [4 favorites]


Dismissing the case would be a fantastic outcome. I would be so thrilled - the 9th Circuit decision was great, and would love it if that stands as the final decision. I could get legally married!

One thing I haven't been able to figure out (and I know this is more a question for tomorrow): If DOMA is found to be unconstitutional and the 9th Circuit Prop 8 decision stands, if a gay couple gets married legally in one state and moves to another that doesn't recognize gay marriage, will they still get the federal benefits of marriage automatically, or would it require another legal battle on full faith and credit grounds?
posted by robstercraw at 10:07 AM on March 26, 2013 [2 favorites]


Summary of a post from the SA forums: Why not rule on this issue now, when everyone seems to acknowledge that it's inevitable? Basically, on the one hand, some justices might be inclined to wait on the issue of gay marriage because the court didn't pass Loving v Virginia about interracial marriages until 2/3 of states already allowed interracial marriage, the culmination of a 20 year, mostly state-level process. On the other hand, even when they decided that case in 1967, interracial marriage had just 20% support nationally- and gay marriage has over 50% support today.
posted by showbiz_liz at 10:07 AM on March 26, 2013 [5 favorites]


It is pretty weird how inevitable this feels when just a couple years ago I was pretty pessimistic about it.
posted by shakespeherian at 10:09 AM on March 26, 2013 [20 favorites]


Blazecock Pileon: "NYT has a good infographic that explains the consequences of the court issuing various rulings in the two cases in front of it, which addresses the states vs federal rights matter."

That's excellent. Thanks very much for posting it.
posted by zarq at 10:09 AM on March 26, 2013


when they decided that case in 1967, interracial marriage had just 20% support nationally

Holy shit, really?

If DOMA is found to be unconstitutional and the 9th Circuit Prop 8 decision stands, if a gay couple gets married legally in one state and moves to another that doesn't recognize gay marriage, will they still get the federal benefits of marriage automatically, or would it require another legal battle on full faith and credit grounds?

Definitely not a lawyer, but I would imagine they would get federal benefits without too much of a problem. It'd be state/local-level benefits that would require a Full Faith and Credit battle.
posted by kmz at 10:10 AM on March 26, 2013 [1 favorite]


Jeez Kennedy, this is like deciding whether you want to be in majority in Plessy v Ferguson or in Brown v Board of Education. I always thought his vanity would steer him toward the latter.

Looks like the more important decision will come out of tomorrow's case instead, and I can't say I'm too encouraged right now.
posted by MoonOrb at 10:11 AM on March 26, 2013 [1 favorite]


Gay Marriage’s Legal Crusader: This week, Roberta Kaplan will try to get the Supreme Court to overturn DOMA—ratifying her marriage, too
posted by homunculus at 10:14 AM on March 26, 2013 [1 favorite]


Holy shit, really?

Really. And it only surpassed 50% in the early NINETIES.
posted by showbiz_liz at 10:14 AM on March 26, 2013 [20 favorites]


From the NYT article: “You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?” he said.

Really? Alito said "and/or"? Dude is weird...
posted by AwkwardPause at 10:14 AM on March 26, 2013


Alito: Same sex marriage is younger than cell phones and the Internet...we can't see the future.

Yes, because letting gay people marry is definitely like the Internet. And definitely no gay people have ever been in serious long-term relationships before, ever, except for all those thousands of gay people who've have lived and loved throughout history.

And definitely all straight people are great at marriage and raising kids! Yep, it's true, I walk by kids with my engagement ring on and their test scores instantly rise 5%. Kids raised by straight people are only visited by unicorns and their homework illustrated by rainbows.

You know what, Alito? I think you're wrong. I think in the future, my kids will go to school with the kids of gay couples-- the kids of my classmates, who are straight and bi and gay and trans. Will it be perfect? Of course not. Because people are not perfect. In fact, we're actually kind of terrible at relationships. We're better than panda bears, kind of, but you know what? I don't think allowing gay couples the legal protection of marriage will hurt my marriage. I don't think it will hurt my future offspring any more than the Internet will. In fact, I think America will be a better place for it.
posted by jetlagaddict at 10:18 AM on March 26, 2013 [7 favorites]


Justice Samuel A. Alito Jr. said the court should not move too fast.
“You want us to step in and assess the effects of this institution, which is newer than cellphones and/or the Internet?”


Well, he's right. I mean, it's not like we let the government regulate cell phones or the internet. It just sits there, motionless, making a soothing humming noise, like a sleeping version of the Trash Heap from Fraggle Rock.
posted by Greg Nog at 10:20 AM on March 26, 2013 [69 favorites]


If I were a member of the Republican leadership, I'd be hoping, wishing, and praying that the court find Prop 8 unconstitutional.

Same-sex marriage has tilted in the public consciousnesses, I feel irrevocably, and the party members have taken too hard a line/are dedicated true believers to actually change their minds on it a la Rob Portman. The Republican party is so far behind the electorate on this issue that it will only serve to sink them as long as it's a topic that's up for debate. QTLBG-bashing is no longer a viable strategy in presidential elections.
posted by The Notorious SRD at 10:23 AM on March 26, 2013 [9 favorites]


As much as I'd like to see the court make SSM legal nationwide, I feel they are going to chicken out.
posted by Pogo_Fuzzybutt at 10:23 AM on March 26, 2013 [2 favorites]


Well, he's right. I mean, it's not like we let the government regulate cell phones or the internet. It just sits there, motionless, making a soothing humming noise, like a sleeping version of the Trash Heap from Fraggle Rock.

How I imagine Alito thinks of the Internet.
posted by zombieflanders at 10:24 AM on March 26, 2013 [5 favorites]


God, listening to the oral arguments (rather than reading it) is just fascinating. And I'm still only listening to the standing issue. Highly recommended.

Also, I am even more in love with Elena Kagan than ever.
posted by MCMikeNamara at 10:25 AM on March 26, 2013 [1 favorite]


@SCOTUSblog: “Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.”

leotrotsky: “SCOTUSblog is not super optimistic.”

I'm not really sure about that. At this point any ruling that doesn't uphold Proposition 8 is a win, I think. And there are reasons to believe that it'd be better for all of us if the Supreme Court didn't unilaterally declare all gay marriage bans unconstitutional, but instead left that for the states to do.

In other completely unrelated news, four decades after Roe v Wade, South Dakota banned abortion yesterday.
posted by koeselitz at 10:25 AM on March 26, 2013 [1 favorite]


This is from the unofficial transcript. Really interesting - small tag because it's so long:

JUSTICE KAGAN: Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?
MR. COOPER: I -- Your Honor, that's the essential thrust of our -- our position, yes.
JUSTICE KAGAN: Is -- is there -- so you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them? In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest. But do you go further and say that it harms any State interest?
MR. COOPER: Your Honor, we -- we go further in -- in the sense that it is reasonable to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms to that institution and to the interests that society has always -- has -- has always used that institution to address. But, Your Honor, I -­
JUSTICE KAGAN: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs. What harm you see happening and when and how and -- what -- what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?
MR. COOPER: Once again, I -- I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -­
JUSTICE KENNEDY: Well, then are -- are you conceding the point that there is no harm or denigration to traditional opposite-sex marriag couples? So you're conceding that.
MR. COOPER: No, Your Honor, no. I'm not conceding that.
JUSTICE KENNEDY: Well, but, then it -- then it seems to me that you should have to address Justice Kagan's question.
MR. COOPER: Thank you, Justice Kennedy.
have two points to make on them. The first one is this: The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences. But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.
JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.
JUSTICE GINSBURG: California -- no, California does.

posted by insectosaurus at 10:25 AM on March 26, 2013 [11 favorites]


Justice Antonin Scalia asked Olson when exactly it became unconstitutional to bar gays and lesbians from marrying. Was it 1791? 1868? Mr. Olson responded with a question of his own: When did it become unconstitutional to ban interracial marriage?

As best I can tell, that was July 9, 1868. (Which still feels embarrassingly recent to me, but I get it) But maybe that's why I'm not a lawyer.

Also, note to Alito there: gay marriage is the same institution as just plain marriage.
posted by mrgoat at 10:25 AM on March 26, 2013 [3 favorites]


It is pretty weird how inevitable this feels when just a couple years ago I was pretty pessimistic about it.

I'm the same way, I've been calling it the "inevitability of being on the right side of history."
posted by quin at 10:26 AM on March 26, 2013 [1 favorite]


I fully expect this case (Hollingsworth/Prop 8) to be punted because of a lack of standing on behalf of the Prop 8 defenders. I think (probably wrong here, but I don't have time to trace the case history back) that this will mean that the CA court's opinion stands and Prop 8 fails.

That being said, I expect that the opinion in tomorrow's case (Windsor/DOMA) will strike down DOMA as unconstitutional, given that some states do allow same sex marriage, and it is a violation of states-rights for the federal government to claim that marriages that those states authorized are not valid/should be treated differently.

It's not the ideal path, because it means marriage equality will remain a state-by-state fight, but it looks the forces for good are starting to _win_ that fight, so it's an outcome that I can live with.
posted by sparklemotion at 10:27 AM on March 26, 2013 [1 favorite]


showbiz_liz: "On the other hand, even when they decided that case in 1967, interracial marriage had just 20% support nationally- and gay marriage has over 50% support today."

Yeah, but I do not understand why that should make a difference.

Sometimes SCOTUS decisions happen in advance of public opinion on a particular subject, such as with Roe v. Wade, where the majority of states were against abortion when the ruling happened. And sometimes, SCOTUS decisions lag behind public opinion, such as Brown v. Board of Education and Loving v. Virginia.

The Supreme Court is not supposed to take cases or make decisions based on what the country can handle or is liable to agree with. They're supposed to determine whether laws and Executive actions are constitutional and interpret the degree of constitutionality of those laws and actions.

"It's too soon to tell if this is Constitutional" is a ridiculous cop out of an answer. Should Earl Warren have told Richard and Mildred Loving, "Sorry, come back in 30 years when the country doesn't have to be dragged kicking and screaming into the 20th century?"

Equality, justice, human dignity and fairness shouldn't be forced to the back of the bus because one Supreme Court Justice thinks it's "too soon" to consider whether all Americans deserve them.
posted by zarq at 10:27 AM on March 26, 2013 [24 favorites]


If Scalia doesn't like it when people make him look stupid at oral argument, maybe he shouldn't ask such stupid f'n questions. And really Kennedy, if you want to know whether the sky will cave in because gay people can get married you don't have to make up fantasy scenarios. Look around. It's been legal in Holland for 12 years, and I don't think any collapse of the family there or anywhere else can be attributed to gay people tying the knot. But that would mean not living in a bubble for five minutes, which might also mean the discovery that the US Constitution isn't the alpha and the omega of human rights in this world. Can't have that.
posted by 1adam12 at 10:28 AM on March 26, 2013 [8 favorites]


It's not particularly relevant to what the SCOTUS will do, but I think people here will love it, and it deserves more exposure: GetUp Australia's fantastic ad for marriage equality.
posted by aeschenkarnos at 10:35 AM on March 26, 2013 [12 favorites]


The Golden Girls weigh in.
posted by brundlefly at 10:38 AM on March 26, 2013 [26 favorites]


I don't think allowing gay couples the legal protection of marriage will hurt my marriage. I don't think it will hurt my future offspring any more than the Internet will. In fact, I think America will be a better place for it.

Yeah, but gay sex is icky, and we have a "moral disapproval" of it.
posted by the man of twists and turns at 10:39 AM on March 26, 2013


I am terrified that somehow this is going to mark the point where the waters roll back - that we've reached that high water mark for now and things will sweep back away like the US territories that allowed women to vote back in the 1800's until the government turned around and retracted the right of women to vote. And I'll never marry my girlfriend because marriage equality will fall away bit by bit until even the night I watched couples emerge from city hall Cambridge, MA, marriage licenses in hand - the first in the nation - is just a footnote in a cul de sac of history.

I know it's not rational, and I know it's not likely in the long - or even medium or even the short - term here, given the change in support from the straight majority over the past few years. But there it is.
posted by rmd1023 at 10:40 AM on March 26, 2013 [2 favorites]


I'm still waiting for SCOTUS to overturn Prop Joe.
posted by guiseroom at 10:42 AM on March 26, 2013 [4 favorites]


If anyone in L.A. wants to get married once the verdict is in, I got an internet certificate that says I can do exactly that. Feel free to hit me up.
posted by klangklangston at 10:45 AM on March 26, 2013 [6 favorites]


It's too bad that Kennedy isn't voting based on "who he treats more like a dumbass?" because Cooper's side wouldn't have a chance.
posted by MCMikeNamara at 10:45 AM on March 26, 2013


rmd1023, take heart. My 72 year old Republican straight-ticket voting mother said, "this is stupid; why don't they just let them marry," not ten minutes ago. This isn't a tide, It's the Mississippi River.
posted by 1066 at 10:47 AM on March 26, 2013 [47 favorites]


The Internet was commercialized in 1995 when NSFNET was decommissioned, so I'm going to mark that as the birth of the modern Internet in a way that is comparable to modern gay marriage -- as a mass phenomenon that affects a large number of public citizens.

The first major Supreme Court case regarding the Internet was Reno v. American Civil Liberties Union, regarding anti-indecency provisions that attempted to criminalize the transmission of indecent materials via the Internet because of fear that children would be able to access it. The Supreme Court struck down these provisions as violating the First Amendment.

That case was in 1997, two years after it might reasonably have become possible for a large number of children to access porn on the Internet.

Vermont first allowed civil unions for same-sex couples in 2000. Thirteen years ago.
posted by Bunny Ultramod at 10:48 AM on March 26, 2013 [9 favorites]


Once again, The Onion hits it out of the park: Supreme Court On Gay Marriage: 'Sure, Who Cares'
Moreover, when Attorney Cooper said that gay marriage could harm the moral fabric of the country and hurt the institution of marriage, Associate Justice Sotomayor asked, “What are you even talking about?” while Justice Anthony Kennedy reportedly muttered, “You got to be fucking kidding me,” under his breath.

“Get married, don’t get married, do whatever you want,” Roberts said. “It’s the opinion of this court that we don’t give two shits what you do.”

“C’mon, let’s go get some food,” added Roberts, as the eight other justices followed him out the door.
posted by schmod at 10:49 AM on March 26, 2013 [41 favorites]


Don’t try to answer my question with your own question, Justice Scalia responded. Mr. Olson then said he could give no specific date on which a ban on gay marriage became unconstitutional. But courts, he said, have never required that kind of precision.

Actually, Scalia did give an answer to Olson. He said, "Easy, 1868". Olson's answer was ultimately "when society decided that sexual preference was predominately genetic".
posted by Tanizaki at 10:49 AM on March 26, 2013 [1 favorite]


Yeah, pretty much all LGBT advocates are treating this as a done deal; the challenge for a lot of c3s/c4s is how to keep the base motivated for a lot of less symbolic stuff. I mean, if we had even a third of the marriage public supporters agitating for, like, broadening the Census and ACS demographic surveys, we'd be able to get that through and it would have a huge, broad and deep effect on the kinds of social services that LGBT Americans get.
posted by klangklangston at 10:51 AM on March 26, 2013 [4 favorites]


This whole thing just makes me anxious and angry. I know I'm going to have to drive home without listening to NPR, because the lies and bullshit slippery-slope arguments coming out of the mouths of the pro-Prop 8 spokespeople will make me shouty and an unsafe driver. And I hate the second-guessing that happens three minutes after a case is argued.
posted by rtha at 10:51 AM on March 26, 2013 [6 favorites]


JUSTICE SCALIA: Mr. Cooper, let me -- let me give you one -- one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not.

Just wanted to pop in and note that, in reality, there isn't any such disagreement in the sociological literature; and in fact, there's some evidence to suggest that same-sex-parented households are actually better for children's emotional/psychological well-being.
posted by clockzero at 10:54 AM on March 26, 2013 [25 favorites]


I'll be moderately happy if the appeal gets kicked out on standing grounds. It will be a decent outcome for California and I think public opinion is going to continue to move in favor of gay marriage which will lead to more states passing it legislatively. However, I do think there is something troubling about an attorney general getting to overrule a state legislature by simply refusing to defend a state law which is subject to a constitutional challenge. If that method was used to invalidate a law that I supported and believed to be constitutional, I would be quite angry. It certainly gives some additional power to attorneys general.
posted by Area Man at 10:58 AM on March 26, 2013 [5 favorites]


You know, Scalia should probably stop making the arguments of one side in the case. You'd get thrown out of high school debate judging for inserting yourself like that.
posted by stevis23 at 11:01 AM on March 26, 2013 [18 favorites]


"If that method was used to invalidate a law that I supported and believed to be constitutional, I would be quite angry."

I think that's fair, though I think you can certainly make the argument that your hypothetical could be distinguished by you suffering actual harm through the de facto repeal of a law due to AG inaction. The Prop. 8 folks have no such harm, as far as anyone can tell.
posted by klangklangston at 11:02 AM on March 26, 2013 [4 favorites]


I am really uncomfortable with this being kicked out on standing grounds. To be clear, I think this particular constitutional amendment should be nuked from orbit and should leave a smoldering crater of equality and fairness where it once stood. But in a completely content-agnostic way, forbidding the proponents of a constitutional amendment to defend that amendment is bad for democracy and bad for our judiciary.
posted by jph at 11:05 AM on March 26, 2013 [2 favorites]


clockzero: " Just wanted to pop in and note that, in reality, there isn't any such disagreement in the sociological literature; and in fact, there's some evidence to suggest that same-sex-parented households are actually better for children's emotional/psychological well-being."

Yep. In case anyone's interested, I made a post in 2010 about a nearly 25-year study that concluded children raised in lesbian households were psychologically well-adjusted and had fewer behavioral problems than their peers.
posted by zarq at 11:05 AM on March 26, 2013 [2 favorites]


It is pretty weird how inevitable this feels when just a couple years ago I was pretty pessimistic about it.

I was in West Germany in 1985, talking to a German guy about reunification. He shrugged, said "I'd love to see it, but it won't happen in my lifetime."

This feels similar. A wall has come tumbling down, whether the Court makes it official this year, or a few years from now, that wall is down.
posted by ambrosia at 11:07 AM on March 26, 2013 [28 favorites]


You know, Scalia should probably stop making the arguments of one side in the case.

He's just doing that to help Thomas figure out how he's going to rule.
posted by Blazecock Pileon at 11:07 AM on March 26, 2013 [12 favorites]


I don't understand how anyone can take the "but think of the children!" argument seriously. So should childless couples have their marriages annulled? Should the state force parents of children to be married?

My mom died when I was elementary school, and despite my dad having his personal issues (doesn't every parent?), he made an effort to be both mom and dad. He was always working and traveling before our mom got sick, but once she was ill he stopped and became an at-home dad. He would make dinner as best he could, pick us up from school and help us with projects and hobbies. He was physically there, and tried his best to be there emotionally for his 3 daughters and one son.

The love of a parent doesn't matter upon their genitals - the idea that anyone cares about a parents genitals is frankly, bizarre and gross. Families and parents take the form of all kinds of shapes and colors, but the only thing that matters is love, support, and being there.

My parents also came from different continents, religions, and skin colors, and got married in the United States 3 years after Loving vs. Virginia. I know they faced some serious stink eye and harsh words by some, but I can't imagine not having the basic legal right to have your love recognized as equal.
posted by raztaj at 11:07 AM on March 26, 2013 [41 favorites]


... there isn't any such disagreement in the sociological literature

And just last week the American Academy of Pediatrics declared its support for same-sex marriage and parenting. "The academy’s review of scientific literature began more than four years ago, and the result is a 10-page report with 60 citations."
posted by ericb at 11:08 AM on March 26, 2013 [10 favorites]


Just wanted to pop in and note that, in reality, there isn't any such disagreement in the sociological literature; and in fact, there's some evidence to suggest that same-sex-parented households are actually better for children's emotional/psychological well-being.

In fact, this came up back when this was still Perry v Schwarzenegger.
posted by Greg Nog at 11:09 AM on March 26, 2013


JUSTICE KAGAN: Mr. Cooper,
[...] the State's principal
interest in marriage is in regulating procreation. Is
that basically correct?
MR. COOPER: I -- Your Honor, that's the
essential thrust of our -- our position, yes.


This could have been comedy gold if Mr. Cooper had played it deadpan. Alas he was kinda peeing himself.
posted by amorphatist at 11:11 AM on March 26, 2013 [4 favorites]


But in a completely content-agnostic way, forbidding the proponents of a constitutional amendment to defend that amendment is bad for democracy and bad for our judiciary.

I get what you're saying, and I almost agree with you. But my actual position is that I think California needs to overhaul or get rid of the entire initiative process; the ability for the electorate to be able to amend the CA constitution with 50.1% of the vote is a REALLY TERRIBLE thing.
posted by insectosaurus at 11:11 AM on March 26, 2013 [25 favorites]


The Prop. 8 folks have no such harm, as far as anyone can tell.

Right. It's not just "if the AG doesn't defend the law, nobody can," it's "If the AG doesn't defend the law, and nobody else can demonstrate standing, nobody can."

I mean, I'm down with the basic principle that laws, even bad ones, ought to be defended, but this is really, really, really exactly like if a bunch of us got together and passed a, "Fuck Frank, that guy needs a punch in the nose," law.

It would be reasonable to ask why we ought to have the right to punch Frank in the nose, and who gets hurt if Frank doesn't get punched in the nose.
posted by Myca at 11:12 AM on March 26, 2013 [11 favorites]


my marriage is opposite gender and childless and will remain that way. this is a choice. i wonder if scalia thinks my marriage shouldn't be protected.
posted by nadawi at 11:14 AM on March 26, 2013 [1 favorite]


The fact that Scalia doesn't get punched in the face on a regular basis because of the way his voice sounds is a real testament to the rules of society and/or the privilege of being an old, white guy.
posted by MCMikeNamara at 11:15 AM on March 26, 2013 [6 favorites]


The Prop. 8 folks have no such harm, as far as anyone can tell.

Right. It's not just "if the AG doesn't defend the law, nobody can," it's "If the AG doesn't defend the law, and nobody else can demonstrate standing, nobody can."

I mean, I'm down with the basic principle that laws, even bad ones, ought to be defended, but this is really, really, really exactly like if a bunch of us got together and passed a, "Fuck Frank, that guy needs a punch in the nose," law.

It would be reasonable to ask why we ought to have the right to punch Frank in the nose, and who gets hurt if Frank doesn't get punched in the nose.


Yes, but as we've seen from some environmental litigation, there can be instances in which there is real harm that isn't personal enough for any one specific person to have standing. It isn't that hard to imagine a state AG deciding not to defend some piece of environmental legislation.

As I said, I'll actually be happy if this case gets booted on standing grounds, but I'm hoping that won't undermine the strong presumption that AGs will defend their states' laws.
posted by Area Man at 11:17 AM on March 26, 2013 [2 favorites]


To be fair, Frank is a jerk.
posted by kirkaracha at 11:19 AM on March 26, 2013 [4 favorites]


As for California not defending, the State of California was opposed to Prop 8 and worked to thwart it.
posted by Ironmouth at 11:19 AM on March 26, 2013


Hey, man, be cool. Frank's mom just died.
posted by grubi at 11:20 AM on March 26, 2013 [1 favorite]


JUSTICE THOMAS:
posted by Danf at 11:22 AM on March 26, 2013 [44 favorites]


the ability for the electorate to be able to amend the CA constitution with 50.1% of the vote is a REALLY TERRIBLE thing.

I agree, completely. The simple majority is a problem. But standing to defend amendments is a completely separate issue from the need for an amendment process reform. Knocking this out on standing because the amendment process sucks is the equivalent of saying "gay marriage equality doesn't matter because marriage as an institution is broken and wrong."
posted by jph at 11:23 AM on March 26, 2013


I've said it before, I'll say it again -- as a person in an intergender, homoracial marriage, with kids even, the only thing that threatens my marriage is the idea that the government can decide on a whim that two people who love each other can't be married.
posted by KathrynT at 11:25 AM on March 26, 2013 [40 favorites]


I'm so focused on my personal ire that I spent far too long to figure out how Frank was a nickname for Antonin.
posted by MCMikeNamara at 11:25 AM on March 26, 2013 [6 favorites]


I would support a change in threshold for initiatives to be either two-thirds of the vote in an election, or even a majority of registered voters.

Basically, in my humble, initiatives should be mainly preserved for repealing bad laws, rather than trying to make new (bad) laws.
posted by klangklangston at 11:27 AM on March 26, 2013 [2 favorites]


If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not.

If Scalia had been on the bench when Loving was heard, would he have made this kind of statement? (probably) There were quite serious social consequences to being a mixed-race couple and a mixed-race kid; my own parents wondered if having a mixed-race child might not be too much of a burden for the child (worked out fine, folks, thanks!).

Any argument that boils down to "But society is mean to people in [circumstance], therefore [circumstance] should not have legal protection," is offensive and ridiculous.
posted by rtha at 11:28 AM on March 26, 2013 [32 favorites]


Hey, KathrynT, can I steal that? It's catchy; seems made for FB. :-)
posted by anastasiav at 11:37 AM on March 26, 2013 [3 favorites]


Oh my god, Facebook is unusable today.
posted by schmod at 11:37 AM on March 26, 2013 [9 favorites]


Yes, but as we've seen from some environmental litigation, there can be instances in which there is real harm that isn't personal enough for any one specific person to have standing. It isn't that hard to imagine a state AG deciding not to defend some piece of environmental legislation.

Sure, this is a reasonable concern, but even there, you can show that the rate of cancer in community X goes up when you add chemical Y to their water supply. Regardless of standing, there is demonstrable harm, and thus the feeling that someone ought to have standing.

It's a lot harder when there's no demonstrable harm at all.

Then we end up asking questions like, "Does not getting your way count as harm?"

And hell, maybe not getting their way does count as harm ... but then everyone has standing, all the time, and I know that's not right.
posted by Myca at 11:38 AM on March 26, 2013


Wait why does Alito think they're being tasked to assess the institution of same - sex marriage? In what was is that their job? They're being tasked to show that unequal protection under the law is unconstitutional regardless of the merits of the institution in question.
posted by shakespeherian at 11:40 AM on March 26, 2013 [4 favorites]


Speaking of unknown "sociological effects" I'm curious as to what happens if today's case is decided in such a way that it only affects California, and tomorrow's case rules that DOMA is unconstitutional. Will there be a noticeable shift in residences for same-sex couples to the states that allow same-sex marriage once full federal benefits are on the line?
posted by mikepop at 11:45 AM on March 26, 2013


The thing that worries me most about this is that SCOTUS may inadvertantly ratify the "Attorney General's Veto".

The big thing that has always bothered me most about this case was that the AG of California refused to defend it. That's not his decision; it's his job to defend all laws, whether he personally agrees with them or not.

If he can choose not to defend a particular law, and SCOTUS decides no one else has standing to do so, then it means he can effectively eliminate any law he doesn't like by announcing that he won't defend it. Then a partisan who sues will win by default and the law is gone.

Attorneys General shouldn't have that kind of power.

Here's what I'd like to see: SCOTUS sends the case back to the original court for retrial, and SCOTUS orders the AG of California to defend the law.
posted by Chocolate Pickle at 11:45 AM on March 26, 2013 [2 favorites]


Would it take 5 votes to dismiss as improvidently granted? I understand that Kennedy wondered aloud whether they even should have granted cert. Is there some chance of the 4 liberal justices joining in with Kennedy to dismiss which would leave the 9th Circuit decision in place?
posted by Area Man at 11:47 AM on March 26, 2013


But Chocolate Pickle, to what extent may the Court order the AG to defend the amendment? Will the AG then be subject to attack for not defending it well enough? It seems to me that the goal should be a robust adversarial defense of the amendment, and it is highly unlikely that forcing the AG to defend it would achieve that. In fact, in this case, we know for certain it would not yield that result.
posted by jph at 11:50 AM on March 26, 2013 [1 favorite]


The thing that worries me most about this is that SCOTUS may inadvertantly ratify the "Attorney General's Veto".

The big thing that has always bothered me most about this case was that the AG of California refused to defend it. That's not his decision; it's his job to defend all laws, whether he personally agrees with them or not.

If he can choose not to defend a particular law, and SCOTUS decides no one else has standing to do so, then it means he can effectively eliminate any law he doesn't like by announcing that he won't defend it. Then a partisan who sues will win by default and the law is gone.


This bothers me too, and I'd like to think it would bother someone like Roberts so much that he will jump on board with the liberal wing and find some other (admittedly it will be narrow) ground on which to affirm the Ninth Circuit. I've had a sneaking suspicion for some time that Roberts' vote on this may very well depend on how he reads the majority coming out. He may prefer not to be on the wrong side of this case so that he can exercise as much control as possible over the opinion.

That is probably a flight of fancy, but you'd have to think he's at least considering this idea.
posted by MoonOrb at 11:51 AM on March 26, 2013 [1 favorite]


Here's an interesting analysis by Ari Ezra Waldman over at Towleroad.
posted by ericb at 11:52 AM on March 26, 2013 [1 favorite]


Oh my god, Facebook is unusable today.

Heh. The only facebook thing I'm paying attention to today is a discussion about the use of double-spaces after periods. I am anti; several people are strongly pro or wishily-washily "well, that's how I learned it and I can't unlearn it."

posted by rtha at 11:58 AM on March 26, 2013 [9 favorites]


If he can choose not to defend a particular law, and SCOTUS decides no one else has standing to do so, then it means he can effectively eliminate any law he doesn't like by announcing that he won't defend it.

That doesn't follow. If some other opponent of the law can demonstrate real harm as a consequence of the law, then they'd have standing regardless of the A/G's position. It's not a minor technical point that no one can demonstrate any harm from gay marriage; it's actually pretty central to the case against Prop 8.
posted by yoink at 11:58 AM on March 26, 2013 [9 favorites]


I've been enjoying seeing my Facebook turn into a sea of red equal signs.
posted by kmz at 11:59 AM on March 26, 2013 [22 favorites]


yeah, that's been pretty touching
posted by roboton666 at 12:00 PM on March 26, 2013 [1 favorite]


I like to imagine them as red superhero masks.
posted by Bunny Ultramod at 12:02 PM on March 26, 2013 [1 favorite]


The thing that worries me most about this is that SCOTUS may inadvertantly ratify the "Attorney General's Veto".

That's an interesting thought, and honestly I think that it may have more long-term effects than the actual issue at hand — in a decade or two, same-sex marriage is going to be a non-issue in the same way that inter-racial marriage is today, that's just the way the tide of public opinion is moving. But the downstream effects of allowing a state attorney general to selectively invalidate laws are difficult to predict.

I'm not sure it would be disastrous, though. The legal system has a lot of similar checks and balances, where the law-as-enforced is not necessarily the same as the law-as-written and this is generally regarded as a feature rather than a bug. E.g., in many jurisdictions District Attorneys are elected by popular vote and can exercise prosecutorial discretion, with the net effect that the popular vote thus constrains how the laws are enforced, regardless of what is actually on the books. The laws have never been meant to be enforced by automatons, and allowing a state Attorney General, who is appointed by the state's executive or directly elected, to selectively invalidate a law when it runs strongly counter to public opinion might be viewed as a useful check on a corrupt or generally out-of-touch legislature.

That said, I think you could easily counterargue that there is a check in place for the executive branch at the state level to selectively alter the enforcement of laws, through the granting of pardons and the use of the veto, and that it gives too much power to the executive if they can essentially trump a veto-override by simply instructing the Attorney General not to enforce a law when it is challenged.

There might be a fundamental balance-of-power change as a result of giving an Attorney General the ultimate legal override, and I suspect whether you viewed that as a benefit or a hazard would depend entirely on your opinions on whatever party happened to control that branch of government at a particular time.
posted by Kadin2048 at 12:04 PM on March 26, 2013 [1 favorite]


How is it that, once again, it all depends on what Anthony Kennedy had for breakfast?

Because whenever there's a major change in society, there's always going to be a moment when it tips from 49.9% in favor to 50.1% in favor. If there were a decisive majority (now) on the SCOTUS that thought gay marriage was a constitutional right, it would have happened a long time ago, and that time would have been when the court tipped, and the tipping point would probably have been Kennedy.
posted by straight at 12:06 PM on March 26, 2013


But Chocolate Pickle, to what extent may the Court order the AG to defend the amendment? Will the AG then be subject to attack for not defending it well enough?

Yes. It would be contempt of court, and the trial judge would determine that the AG had done an incompetent job, and order a mistrial. In the extreme case it could result in disbarment.

There are ways around this. The AG can hire an external law firm to handle the case, for instance.
posted by Chocolate Pickle at 12:11 PM on March 26, 2013 [1 favorite]


From the transcript:


JUSTICE SOTOMAYOR: All right. If that -if that is true, then why aren't they a class? If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?

MR. COOPER: No, Your Honor, we certainly are not. We -- we are saying the interest in marriage and the -- and the State 's interest and society's interest in what we have framed as responsible procreation is -- is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.

But to come back to your precise question, I think, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -and traditional tests for identifying suspectedness. The -- the class itself is -- is quite amorphous. It defies consistent definition as -- as the Plaintiffs' own experts were -- were quite vivid on. It -- it does not -- it -- it does not qualify as an accident of birth, immutability in that -- in that sense.

---

Religion is also not an accident of birth, and it's far from immutable, and yet it is protected.

I'm not surprised that the plaintiff's arguments are so terrible. They didn't really have much to work with to start.
posted by rtha at 12:16 PM on March 26, 2013 [11 favorites]


If my marriage needs defending, it's from shit like hantavirus and grizzly bears, not Teh Gayz.

Maybe asteroids, too.
posted by gottabefunky at 12:20 PM on March 26, 2013 [16 favorites]


nadawi: my marriage is opposite gender and childless and will remain that way. this is a choice. i wonder if scalia thinks my marriage shouldn't be protected.

Yup. It's ok, though. You can be in my childless marriage heathen club, if you want. We have cookies!
posted by bitter-girl.com at 12:21 PM on March 26, 2013 [8 favorites]


Oooh! Yes, nadawi, your marriage is subject to regulation too because didn't you see the part where Mr. Cooper says that they've got an interest in making sure that you don't go having sex with anyone else?!

Yow. Zuh.
posted by jph at 12:24 PM on March 26, 2013


nadawi: “my marriage is opposite gender and childless and will remain that way. this is a choice. i wonder if scalia thinks my marriage shouldn't be protected.”

Er. Antonin Scalia seems to be pretty forthrightly saying that the whole "marriage is for procreation" argument is a crock. He was openly mocking it in court today, in fact – suggesting jokingly that maybe we should put "are you fertile?" questionnaires at the marriage desk. And yes, that was a joke.

Not that I generally agree with Scalia, but when I do I guess it seems pretty remarkable. And this is one case I agree with him on; that "marriage is for procreation" argument is silly.
posted by koeselitz at 12:27 PM on March 26, 2013 [3 favorites]


Yes because otherwise we would have to ban marriage for post-menopausal women.
posted by Secret Life of Gravy at 12:28 PM on March 26, 2013


I just don't understand how Cooper's argument about marriage needing to preserve "traditional procreative purposes" has any weight at all in a court of law. Cooper says gay marriage will "refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples." The Court reasonably points out that there are plenty of heterosexual marriages that are entirely about the "emotional needs and desires of adults," what with being between people over 55 (and thus almost certainly unlikely to have children) or between people who are infertile or otherwise have no intention of having children. Cooper's response to that (at around pages 24-27 of the transcript) just makes no sense to me. Something about how even if some couples can't/won't have children and thus don't preserve the "traditional procreative purposes" of marriage, they still do because status quo? What?

I know this all comes down to "but gays are gross and the Bible says so," but does this "procreation first" view of marriage have any weight as a legal and/or logical argument? Even Scalia basically said that fertility shouldn't have anything to do with marriage.
posted by yasaman at 12:29 PM on March 26, 2013 [1 favorite]


> Antonin Scalia seems to be pretty forthrightly saying that the whole "marriage is for procreation" argument is a crock. He was openly mocking it in court today, in fact

if that's how he feels though he can't then turn around and cite "think of the children of these gay marriages!!" and "in some places gays can't adopt!" stuff. i mean i personally think it's obvious he doesn't actually take the "government cares about marriage as a means of regulating procreation" thing far literally, but if so he can't grasp at those arguments half-assedly.
posted by ifjuly at 12:30 PM on March 26, 2013


Not that I generally agree with Scalia, but when I do I guess it seems pretty remarkable. And this is one case I agree with him on; that "marriage is for procreation" argument is silly.

He (and Thomas!) also came down on the right side of a drug-dog case today. It's kind of strange.
posted by Holy Zarquon's Singing Fish at 12:31 PM on March 26, 2013 [1 favorite]


I love the spirit behind the red HRC symbols on FB, but they make me a little uncomfortable because I don't actually support the HRC (which has historically not been supportive / inclusive of trans rights and I believe continues to have poor relationships with trans communities).
posted by insectosaurus at 12:32 PM on March 26, 2013 [19 favorites]


I hate Facebook 'solidarity' symbols in general, including the red (why red? serious question. red=hearts?) HRC thingy. It just feels like wanting to get the warm fuzzies from being involved in a cause, without actually, you know, doing any work.

Beyond trans crappiness, my general impression of the HRC is that they're more worried about the right people coming to their parties than any kind of actual activism.
posted by PMdixon at 12:37 PM on March 26, 2013 [6 favorites]


"Yes. It would be contempt of court, and the trial judge would determine that the AG had done an incompetent job, and order a mistrial. In the extreme case it could result in disbarment.

There are ways around this. The AG can hire an external law firm to handle the case, for instance.
"

Or the current way around it, which is to let an outside group with standing intercede on behalf of the law.

More to the point, attorneys general, in general, have discretion over which cases they pursue. Currently, they are not required by California law to defend every state law which could be challenged, and it's easy to come up with examples where defending a law passed by the public would be absurd.
posted by klangklangston at 12:38 PM on March 26, 2013


"I hate Facebook 'solidarity' symbols in general, including the red (why red? serious question. red=hearts?) HRC thingy. It just feels like wanting to get the warm fuzzies from being involved in a cause, without actually, you know, doing any work.

Beyond trans crappiness, my general impression of the HRC is that they're more worried about the right people coming to their parties than any kind of actual activism.
"

That's part of why I made a red logo for my org rather than just picking up the HRC one. (Well, and that I wanted to make one with a couple rings and then remembered that I hate Illustrator and could do the logo in Photoshop.)
posted by klangklangston at 12:39 PM on March 26, 2013


Well, you could always just do what I did.
posted by showbiz_liz at 12:40 PM on March 26, 2013 [6 favorites]


I tinted my profile picture red. It's annoying trying to figure out who everyone is without a distinct picture. (of course, I don't have that problem here but I'm used to it)
posted by dobi at 12:41 PM on March 26, 2013 [2 favorites]


Maybe asteroids, too.

I, for one, am firmly against asteroid marriage. I am particularly opposed to Earth-Asteroid unions; those could pose a grave threat to the stability of my marriage.
posted by yoink at 12:42 PM on March 26, 2013 [13 favorites]


Klang, I disagree. A lawyer's job is to defend the position of his client, no matter how he feels about it. For instance, in criminal law that means a lawyer doesn't get to choose to only defend those he thinks are innocent.

If lawyers pick and choose, the system collapses. It means the lawyers themselves are substituting their own judgement for that of the Judge and Jury.

The system is based on two biased advocates (plaintiff and defendant's lawyers) arguing the case in front of an unbiased and disinterested judge and jury, but for it to work both lawyers have to do the best job they can.

The AG's client is the voters of the State of California. They passed this law, and it is the AG's duty as a lawyer to defend it, even if he hates it. And it is his duty to do his best to defend it. Lawyers do that all the time.

And if it is suspected that a lawyer is not doing his best for a client he hates or despises, the Bar will take notice.

it's easy to come up with examples where defending a law passed by the public would be absurd.

I'd be interested in hearing one.
posted by Chocolate Pickle at 12:44 PM on March 26, 2013


I refused to participate in FB shenanigans because really? You're my "friend" and you don't know I support full LGBTQ equality? Srsly? Unless the HRC is doing a head count, I don't see the point.

I made the polite request that anyone opposed to LGBTQ equality please change their profile pic to a dead fish that I may change my filters accordingly.
posted by sonika at 12:45 PM on March 26, 2013 [3 favorites]


It just feels like wanting to get the warm fuzzies from being involved in a cause, without actually, you know, doing any work.

How do you know that those of us using it aren't also actively involved in the fight for LGBTQ rights in many other ways?
posted by scody at 12:45 PM on March 26, 2013 [8 favorites]


Unless the HRC is doing a head count, I don't see the point.

I haven't done it, but can't complain that others are. I imagine were I a gay person, it might be extremely heartening to see such a visible symbol of support.
posted by Bunny Ultramod at 12:48 PM on March 26, 2013 [11 favorites]


The AG's client is the voters of the State of California. They passed this law, and it is the AG's duty as a lawyer to defend it, even if he hates it.

My question about this is if, in the AG's opinion (and perhaps after consultation with other state attorneys), the voter-approved law blatantly violates either the state or federal constitution, can no consideration be given to the financial burden (for instance) the state would bear to defend what its legal officials consider to be unconstitutional? I think I asked this in another Prop 8 thread (or maybe on facebook?), but I don't recall if I ever got an answer. There may not be one, legally speaking.
posted by rtha at 12:52 PM on March 26, 2013


The AG's client is the voters of the State of California. They passed this law, and it is the AG's duty as a lawyer to defend it, even if he hates it.

I would be interested to hear a lawyer make the distinction over whether an AG represents the laws of a state, or the people of a state.

If the latter, it might be argued that the AG also represents the people who voted against the proposition, and therefore has to weigh their rights against the purported benefits of the law when deciding about enforcing it.
posted by aught at 12:54 PM on March 26, 2013 [1 favorite]


As a gay person, I can assure you, it is heartening to see people doing it. Even though it is slacktivism. Even though it doesn't *do* anything. Even though I already know that all my friends and family are supportive. Even though the HRC isn't the organization I want it to be.

Sometimes things are more important than the sum of their parts.

Compare to: condescending negativity, which never made me feel good about anything!
posted by jph at 12:54 PM on March 26, 2013 [25 favorites]


I imagine were I a gay person, it might be extremely heartening to see such a visible symbol of support.

As a queer person, it doesn't matter to me one iota what someone does with their FB profile. I'm much more interested in what they do in daily life to be an LGBTQ ally than I am in their participation in a meme.
posted by sonika at 12:54 PM on March 26, 2013 [2 favorites]


Yeah, but imagine everyone's bigoted aunts and uncles just seething at how the times have changed and left them behind. That might be the only upside to having people's parents on Facebook!
posted by padraigin at 12:56 PM on March 26, 2013 [7 favorites]


How do you know that those of us using it aren't also actively involved in the fight for LGBTQ rights in many other ways?

Well I don't know that, because it's obviously not true. But I can, to draw an analogy, be in favor of X protest, and still find puppets tacky.

Basically I am a cranky young man, is what I am saying, and would like to return to the days of usenet and geocities, where the tackiness was at least hand-crafted. (Pro-puppet point, I guess.)

(Also: klang, from a young quasi-married gay man, major props on you and ya'll's work, even if I find modern activist communication styles/tools/techniques silly.)
posted by PMdixon at 12:58 PM on March 26, 2013 [1 favorite]


Yeah, if the HRC does anything for trans people, it tends to be accidental. (Pretty much the good thing that can be said for them is that they count trans-inclusive health care when they rate companies and apparently (some) companies actually care about their rating). I think it's been also established gay rights money is better spent locally.
posted by hoyland at 12:58 PM on March 26, 2013


It just feels like wanting to get the warm fuzzies from being involved in a cause, without actually, you know, doing any work.

You may assume warm fuzzies, but as someone who has gone around and around with the LDS part of my extended family on gay marriage, warm fuzzies is definitely not what I'm getting. I borrowed this version a friend made because there are too many people in my FB feed who are not supportive.

Or what padraigin said.
posted by ambrosia at 12:58 PM on March 26, 2013 [3 favorites]


Honestly the case for the appellants is horrible. They basically have no real reason to suggest that gay marriage is bad other than the force of tradition. While that might be enough to postpone a day of reckoning on this issue especially if Kennedy decides to chicken out it seems blatantly apparent that this is not going to withstand significant legal scrutiny moving forward.

From a conservative perspective it almost seems like the best case scenario if the SCOTUS ruling this unconstitutional and then using that to driving fundraising and GOTV because you know activist judges.
posted by vuron at 12:59 PM on March 26, 2013 [1 favorite]


"Klang, I disagree. A lawyer's job is to defend the position of his client, no matter how he feels about it. For instance, in criminal law that means a lawyer doesn't get to choose to only defend those he thinks are innocent."

Actually, it's my understanding that if a lawyer doesn't feel they can effectively defend their client — for example, a public defender that believes the client is guilty — they can beg off of that case and have it reassigned to another lawyer.

"I'd be interested in hearing one."

Easy. If the voters of California banned interracial marriage, I would not expect the AG to defend that law. Or any other blatantly unconstitutional law, say, that Muslims couldn't live near schools.
posted by klangklangston at 1:00 PM on March 26, 2013 [2 favorites]


Maybe we could drop the Facebook derail and talk about the actual arguments today, which seem to have a lot more import.

This part, which was discussed a bit above, was interesting to me:
JUSTICE SCALIA: You -- you've led me right into a question I was going to ask. The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We -- we decide what the law is. I'm curious, when -­ when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question? When -- when -- when did the law become this?
MR. OLSON: When -- may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It's an easy question, I think, for that one. At -- at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question. (Laughter.)
JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?
MR. OLSON: When the -- when the California Supreme Court faced the decision, which it had never faced before, is -- does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals -- is it -- is it constitutional -­
JUSTICE SCALIA: That -- that's not when it became unconstitutional. That's when they acted in an unconstitutional matter -- in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That -- they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it -­
JUSTICE SCALIA: I'm not talking about the California Supreme Court. I'm talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There's no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -­
MR. OLSON: Because the case that's before you -­
JUSTICE SCALIA: -- if you can't give me a date when the Constitution changes?
MR. OLSON: -- in -- the case that's before you today, California decided -- the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don't want those people to be able to get married.
This is a trick question of Scalia's, of course – an originalist attempt at a "gotcha" on his part. At first, I was disappointed in Mr Olson's answer, which I thought should have been "1868" right off the bat – if we're going to play the originalist game, the answer is "the day Equal Protection passed with the 14th amendment." But Olson's answer is neatly done because it prompted Scalia to admit that interracial marriage and school segregation became unconstitutional on that day, too – even though I am fairly positive that the 14th amendment wasn't originally intended to invalidate miscegenation or segregation laws.

Would have been neater if Mr Olson had found a chance to hammer that point home, but still – good for him.
posted by koeselitz at 1:00 PM on March 26, 2013 [15 favorites]


i changed my icon because i know there are closeted people in my family and i want them to see just how supportive their friends and family are (the ones who have told me also get my personal support, of course). and, yes, what ambrosia said, as my family is mormon, i don't mind putting my support front and center sometimes.
posted by nadawi at 1:01 PM on March 26, 2013 [5 favorites]


"(Also: klang, from a young quasi-married gay man, major props on you and ya'll's work, even if I find modern activist communication styles/tools/techniques silly.)"

Just as a note, we generally find them silly too, but they're popular and are often a good way of expanding our email list/likes etc. So it ends up being a tactical decision, and one we are very clear not to confuse with, say, attending a rally or giving money.

"Yeah, if the HRC does anything for trans people, it tends to be accidental. (Pretty much the good thing that can be said for them is that they count trans-inclusive health care when they rate companies and apparently (some) companies actually care about their rating). I think it's been also established gay rights money is better spent locally."

We were pretty chuffed when GLAAD said their next big priority is trans folk, because we've been working hard to get protections for trans folks passed but without the huge money muscle of orgs like GLAAD, we just can't do the level of messaging research that's necessary to, you know, not be making it up as we go along. So we're really hoping that GLAAD getting involved raises the profile to the extent that we start being able to get some more resources to do more trans-labelled stuff.

(Like, we just got a pretty huge grant from the California Endowment ostensibly to educate all marginalized LGBT people about health care options under Obamacare, but in practice — at least as it stands now — pretty much all of the money will actually go to reaching trans people of color outside of cities, because they're the ones with the most pressing need. We'd love to be able to do even more and reach even more LGBT people, but in terms of priorities, the focus really is trans folks despite it being a broader LGBT push.)
posted by klangklangston at 1:05 PM on March 26, 2013 [7 favorites]


Huckabee: Evangelicals Will Walk if GOP Backs Gay Marriage

My birthday is coming up in a couple of months...
posted by zombieflanders at 1:05 PM on March 26, 2013 [14 favorites]


Here are alternatives to the HRC Red Equal Sign that friends are posting on FB:
We Are All Equal.

United For Marriage.

Love.

Life, Liberty and the Pursuit of Happiness.

Life, Liberty and Justice For All.

Like, If You Support Marriage Equality.

This Christian Supports Marriage Equality.
posted by ericb at 1:09 PM on March 26, 2013 [6 favorites]


zombieflanders: "Huckabee: Evangelicals Will Walk if GOP Backs Gay Marriage

My birthday is coming up in a couple of months...
"

Long term, this could be the best thing that could happen to the GOP. Evangelicals without the GOP are just a powerless, angry reactionary fringe group. The GOP without evangelicals could actually be something closer to a sane partner in governance, especially if they're forced to make compromises instead of their current policy of knee-jerk obstructionism.
posted by mullingitover at 1:12 PM on March 26, 2013 [19 favorites]


Where would the Evangelicals go if the GOP supports Gay Marriage?

It seems like an empty threat because at worst they'd just decide to stay home.
posted by vuron at 1:14 PM on March 26, 2013


ericb: “Here are alternatives to the HRC Red Equal Sign that friends are posting on FB...”

This one is better.
posted by koeselitz at 1:15 PM on March 26, 2013 [4 favorites]


I am particularly fond of this as a profile pic I've seen today.
posted by hillabeans at 1:15 PM on March 26, 2013 [2 favorites]


Where would the Evangelicals go if the GOP supports Gay Marriage?

Separatist enclaves, sort of like embittered white supremacists in South Africa?
posted by acb at 1:15 PM on March 26, 2013


Huckabee: Evangelicals Will Walk if GOP Backs Gay Marriage

Oh please, oh please....
posted by the man of twists and turns at 1:16 PM on March 26, 2013


At Supreme Court, Marriage Equality Foes' Best Argument Is That They're Losing
posted by scody at 1:16 PM on March 26, 2013


It just feels like wanting to get the warm fuzzies from being involved in a cause, without actually, you know, doing any work.


That's the thing about solidarity - it doesn't (usually) judge. Whether you march, wear a certain color, gather signatures, wear a ribbon, fundraise, tie a ribbon around your front tree, post memes , raise your fist, or share George Takei's wall posts, it's still saying 'I'm with you on this issue." and it's wonderful to see.
posted by ApathyGirl at 1:18 PM on March 26, 2013 [11 favorites]


I guess the small tag for long quotes is going to be a thing now?

Gay rights advocates give conservative SCOTUS justices a hard push
The prospects for a broad ruling hinge partly on whether the Justices, particularly Kennedy, decide that opponents of Prop 8 — Ted Olson and Solicitor General Donald Verrilli — effectively answered these concerns.

Again and again, Olson repeated that the Court had previously found a “right” to marry, irrespective of procreative intent, in keeping with the plaintiffs’ broad argument that marriage is a Constitutional right. Olson cited Loving v. Virginia, which struck down a ban on interracial marriage on the grounds that excluding citizens from the right to marry deprives them of liberty without due process. I particularly liked Olson closing, which linked this concept to a rebuttal of Kennedy’s “uncharted waters” line and a broad reading of American history as a continual extension of liberty to previously excluded groups:
You suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision, said that prohibitions on interracial marriage, which still existed in 16 states, were unconstitutional.
Olson closed by quoting language previously used by Justice Ruth Bader Ginsburg: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.”

Verrilli made a somewhat narrower argument, but still a Constitutional one: that Prop 8 merits “heightened scrutiny” which reveals it to violate the Constitution’s equal protection clause. He, too, reached back to Loving v. Virginia to rebut the Justices’ worry about moving too quickly, pointing out that exactly the same argument had been made by foes of interracial marriage.

“Waiting is not a neutral act,” Verrilli said. “Waiting imposes real costs in the here and now. It denies to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on as at the heart of the marriage relationship.” By which he meant: Stability.

“The principle argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world,” Verrilli continued. “I think the Court recognized that there is a cost to waiting and that that has to be part of the equal protection calculus.”
posted by zombieflanders at 1:25 PM on March 26, 2013 [2 favorites]


I guess the small tag for long quotes is going to be a thing now?

I sure hope not. My 50-y.o. eyes that have been staring into a monitor editing code all day may not be up to the challenge. Thanks in advance for thinking of the middle-aged among you and get the heck off my lawn or somethin'.
posted by aught at 1:32 PM on March 26, 2013 [5 favorites]


Huckabee: Evangelicals Will Walk if GOP Backs Gay Marriage

I do suspect the GOP primaries will be even more of a train wreck in this case.
posted by aught at 1:37 PM on March 26, 2013 [1 favorite]


checking back to facebook now - one of my closeted family members changed their icon to the red HRC logo. and my heart grew three sizes. who knows if they would have done it if facebook wasn't awash in red - but right this second, in their own tiny way - they get to say i support this. there's a lot to be said about slactivism and how little an icon change means in the grand scheme of things, but i'm just going to sit on the side of heartwarming today.
posted by nadawi at 1:40 PM on March 26, 2013 [28 favorites]


You know, if Kennedy is gonna be the swing on this one, I'm cautiously optimistic:
"On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
posted by asperity at 1:48 PM on March 26, 2013 [2 favorites]


(Arsenio) Hall and (Warren) Oates: @SCOTUSblog: Arguments done. #scotus won’t uphold or strike down #prop8 bc Kennedy thinks it is too soon to rule on #ssm. #prop8 will stay invalidated.
Um, that isn't in the article linked. I presume it's from Twitter, which is blocked at my workplace. Is that a genuine result, or just a presumption?
posted by IAmBroom at 1:48 PM on March 26, 2013


Religion is also not an accident of birth, and it's far from immutable, and yet it is protected.

It's not clear to me that religion would actually be a protected class under modern standards, were it not protected by virtue of the First Amendment as a consequence of the US's formative history. Certainly I, and thus certainly any of the Justices, can come up with better rational grounds for barring discrimination based on immutable characteristics like skin color than one can for religion.

Nobody ever said this stuff has to be consistent, unfortunately.
posted by Kadin2048 at 1:49 PM on March 26, 2013


That's SCOTUSBlog's prediction. Rulings aren't made until June.
posted by zombieflanders at 1:49 PM on March 26, 2013 [1 favorite]


Thanks, zf. As I thought, but wasn't sure. After all, we live in the age of "Supreme Court Strikes Down Obamacare-WHOOPS-No They Don't!"
posted by IAmBroom at 1:51 PM on March 26, 2013


they're more worried about the right people coming to their parties than any kind of actual activism.

See, now, back in the day (80s, large university campus) this is exactly what I and my friends took the term "political correctness" to mean -- caring more about the fashion of the cause than the substance. Wearing the right clothes while protesting, getting the right kind of facetime, avoiding anyone you think might not be cool enough for your cause.

The Right scored a massive rhetorical coup when they twisted this pejorative term around to mean general left-leaning sympathy for any marginalized group's cause. It was saddening to watch that happen over the course of the 80s and 90s.

Where would the Evangelicals go if the GOP supports Gay Marriage?

It seems like an empty threat because at worst they'd just decide to stay home.


I don't have video of the Fox program to be sure, but I assumed from the quote that he meant they'll leave to form their own party.

One of the things I have observed about right-wing and particularly religious right-wing activists is that they always wildly over-estimate how many people support their cause, I guess in proportion to how strongly they feel about their pet issues. No doubt Huckabee thinks he'd take most of the GOP with him if he called for it, which is, of course, delusional. He'd cripple both factions, though it would be interesting to see how many fiscally-conservative Democrats might be tempted to become Republicans if the evangelical activists were no longer a strong force in the Republican party.
posted by aught at 1:53 PM on March 26, 2013 [2 favorites]


zombieflanders: I guess the small tag for long quotes is going to be a thing now?
In Firefox, you can set a minimum text size for the entire web: Tools > Options > Content tab > Fonts & Colors > Advanced > Minimum font size. It's the salvation of these old eyes.

Prob also true for Chrome; hopefully you aren't forced to use IE.
posted by IAmBroom at 1:54 PM on March 26, 2013 [4 favorites]


One of the things I have observed about right-wing and particularly religious right-wing activists people is that they always wildly over-estimate how many people support their cause, I guess in proportion to how strongly they feel about their pet issues.

This is true on every point of the political spectrum. Gun control, healthcare--you name it. People everywhere are subject to the "everyone I know thinks..." delusion.
posted by yoink at 1:56 PM on March 26, 2013 [6 favorites]


One of the things I have observed about right-wing and particularly religious right-wing activists is that they always wildly over-estimate how many people support their cause, I guess in proportion to how strongly they feel about their pet issues. No doubt Huckabee thinks he'd take most of the GOP with him if he called for it, which is, of course, delusional. He'd cripple both factions, though it would be interesting to see how many fiscally-conservative Democrats might be tempted to become Republicans if the evangelical activists were no longer a strong force in the Republican party.

Some people think this is his way of unofficially announcing for 2016. A shot across the bow of the RNC, if you will.

In Firefox, you can set a minimum text size for the entire web: Tools > Options > Content tab > Fonts & Colors > Advanced > Minimum font size. It's the salvation of these old eyes.

I just use "Ctrl +" if I need to. But I'm jumping off the small tag bandwagon (if one ever existed).
posted by zombieflanders at 1:56 PM on March 26, 2013


Alito's argument is spurious because it assumes the institution called marriage has somehow remained static in a way that the Internet hasn't. Religious criteria, racial criteria, age requirements, familial tie restrictions, waiting periods, blood tests, eligibility of ministers: these things do change, all the time. They vary dramatically from state to state. Divorce law has made them change even more. In the same way that the SG suggests there are costs to waiting, there is no such thing as a neutral position from which the state doesn't affect marriage - they do so all the time.

The SG's argument hints at it (as does Olson's), but I really wish we could reframe the state's interest in procreation as the state's interest in childrearing. In 2013, we certainly don't have any issues making babies (as, for example, we did when Judeochristian history restricted gay sex). What the state may still have an interest in is ensuring children can grow up in environments where their parents' shared lives and intimacy are recognized and accepted. As both Olson and the SG point out, kids do incur costs when their parents aren't married or are forced into an inferior institution as a result of their sexual orientation. If the procreative interest were re-framed that way, the petitioner's argument is turned on its head. If the state's historical interest is in protecting marriage for families which raise children, then that historical interest is actually being violated by not allowing gay couples who can (and often do) raise children to get married.
posted by Apropos of Something at 1:58 PM on March 26, 2013 [4 favorites]


In Firefox, you can set a minimum text size for the entire web: Tools > Options > Content tab > Fonts & Colors > Advanced > Minimum font size. It's the salvation of these old eyes.

Unfortunately on my work machine I don't want to be putting machine-specific constraints on things for fear it'll trip me up on something I'm working on (I guess like a font-size typo or something like that). I do use minimum text sizes on my home machine, however.

...Yeah, I know, I should be working at work, not reading Mefi.
posted by aught at 2:00 PM on March 26, 2013


One of the things I have observed about right-wing and particularly religious right-wing activists is that they always wildly over-estimate how many people support their cause, I guess in proportion to how strongly they feel about their pet issues.

"I only know one person who voted for Nixon."
posted by Tanizaki at 2:00 PM on March 26, 2013 [3 favorites]


Once again, The Onion hits it out of the park: Supreme Court On Gay Marriage: 'Sure, Who Cares'

Also:

Kim Jong-Un Comes Out In Support Of Gay Marriage: 'I'm Not A Monster'
posted by Drinky Die at 2:01 PM on March 26, 2013 [4 favorites]


There was a nice "This person supports love" image going around my FB, which is what I used today instead of the red equal sign. I did it because I enjoy troubling any conservative family that still hasn't blocked me, but also for my gay and trans friends on FB, many of whom feel constrained, due to trying to keep peace in their own families, from putting a lot of gay/trans politics stuff on their pages.

In fact, I often post things I know they would like to post but can't. Because there's no cost to me in the way there is to them.

It's also (very minor) penance for my long sojourn in the darkness of my homophobic upbringing, when I said some pretty dumb/hurtful things to friends and others without understanding it.

Other than send money to good causes and vote progressively, there's not really much else I can do. And you know, they are stupid little graphics, but they are still messages worth sending. I wouldn't dismiss them as nothing.

Once they finally strike down DOMA (hopefully tomorrow) it's gonna be rainbows and love and equal signs and all kinds of glurgy sappy love-celebrating crap all over my Facebook.

Can't wait.
posted by emjaybee at 2:09 PM on March 26, 2013 [5 favorites]


It's not clear to me that religion would actually be a protected class under modern standards, were it not protected by virtue of the First Amendment as a consequence of the US's formative history.

Yeah, I dunno. But it's explicitly called out for protection in the Civil Rights Act of 1964 in Title II, which is the public accommodation/interstate commerce one.
posted by rtha at 2:09 PM on March 26, 2013


If the voters of California banned interracial marriage, I would not expect the AG to defend that law. Or any other blatantly unconstitutional law, say, that Muslims couldn't live near schools.

I'm not persuaded. If the AG is asked for an opinion about the constitutionality of the law, he may argue that it is not constitutional. But if it's challenged in court it is still his duty to defend the law.

If he cannot do so, in good conscience, it is his duty to assign someone else to do so. (External counsel if he can't find someone in his department to do it.)

Why do I say that? Because if he himself decides that the law is unconstitutional and takes (or doesn't take) action which results in effective nullification of that law, he is superseding the court system, which is supposed to be making that decision. It's not his job to nullify laws for being unconstitutional. He's entitled to have an authoritative opinion, but actual nullification is a function of the courts.

It's an issue of separation of powers, which is one of the most basic principles of our system.
posted by Chocolate Pickle at 2:09 PM on March 26, 2013 [2 favorites]


One of the things I have observed about right-wing and particularly religious right-wing activists is that they always wildly over-estimate how many people support their cause, I guess in proportion to how strongly they feel about their pet issues.

This may indeed be a general human trait, but you would be forgiven for feeling that the Right has elevated it to an art form these days:
Gary Bauer, president of American Values, a conservative group opposed to gay marriage, is the latest to downplay recent polls that show the tide is turning on public opinion of same-sex marriage. Fox News Sunday host Chris Wallace asked Bauer to weigh in on the result of the Washington Post-ABC News poll out last week showed that showed 58% of Americans feel that gay marriage should be legal, with 36% saying it should be illegal.

“Do you worry that this only puts the Republican Party further out of touch with the mainstream of American voters?” Wallace asked.

“No, I’m not worried about it because the polls are skewed,” Bauer responded.
posted by scody at 2:10 PM on March 26, 2013


I guess the small tag for long quotes is going to be a thing now?

Not really, no. We've discussed it in the past. Many people find the small text annoying. There are, however, technical workarounds. So it's annoyed vs. annoying grudge match time.

But I am just here because I want to hear more about marriage equality and you guys can talk about blockquote etiquette in MetaTalk if you need to.
posted by jessamyn at 2:11 PM on March 26, 2013 [4 favorites]


" Certainly I, and thus certainly any of the Justices, can come up with better rational grounds for barring discrimination based on immutable characteristics like skin color than one can for religion."

There are some decent ones: One, it's often a proxy for ethnicity. Two, it's a private matter of conscience.
posted by klangklangston at 2:13 PM on March 26, 2013


aught: “See, now, back in the day (80s, large university campus) this is exactly what I and my friends took the term ‘political correctness’ to mean -- caring more about the fashion of the cause than the substance. Wearing the right clothes while protesting, getting the right kind of facetime, avoiding anyone you think might not be cool enough for your cause. The Right scored a massive rhetorical coup when they twisted this pejorative term around to mean general left-leaning sympathy for any marginalized group's cause. It was saddening to watch that happen over the course of the 80s and 90s.”

I disagree. The Right won their coup when they got "political correctness" turned into a pejorative in the first place; and personally I feel kind of like a sucker for having used the term that way when I was in college in the 1990s, because I was handing the Right a gift-wrapped victory.

But the truth is that those who fought for "political correctness" historically were not just fashion plates. They had real causes and legitimate requests to make of us. And I regret that I ever sneered at them or used the term in disapprobation.
posted by koeselitz at 2:19 PM on March 26, 2013 [3 favorites]


One slight note to Chocolate Pickle: The AG of California is Kamala Harris, who to my knowledge is not a dude.
posted by zombieflanders at 2:30 PM on March 26, 2013 [1 favorite]


in California, anyone can be a dude.
posted by ambrosia at 2:32 PM on March 26, 2013 [14 favorites]


I think whoever came up with the term “political correctness” scored an own goal of sorts; the term has a vaguely totalitarian feel about it, more redolent of Orwellian thoughtcrime and Soviet-style enforced ideological conformity than of the common sense of not being a jerk (which is what the idea comes down to in general, at least to the point where people who rail against “political correctness”, more often than not, are asserting their right to be jerks).
posted by acb at 2:33 PM on March 26, 2013 [3 favorites]


White House urges caution on Supreme Court tea leaves.
posted by ericb at 2:34 PM on March 26, 2013


VIDEO: Conservatives At Anti-Gay Marriage Rally Undercut One Of Their Primary Talking Points.
posted by ericb at 2:36 PM on March 26, 2013 [2 favorites]


One of the big reasons to bar discrimination based on religion is that it keeps the peace. There's a rich history of war and civil strife tied to efforts to impose or suppress religions. The First Amendement was written by people who were quite familiar with that history.
posted by Area Man at 2:36 PM on March 26, 2013 [5 favorites]


The AG of California is Kamala Harris, who to my knowledge is not a dude.

Yeah, but she wasn't AG when Prop 8 was or was not being defended by the AG's office. That AG was Jerry Brown.
posted by rtha at 2:39 PM on March 26, 2013 [3 favorites]


Once they finally strike down DOMA (hopefully tomorrow)

They're not ruling on DOMA tomorrow, just hearing arguments. They won't rule for a few months, probably.
posted by showbiz_liz at 2:43 PM on March 26, 2013


I made my facebook picture a red isomorphism symbol. (like an equals sign with a ~ over it.) It's useful for me because I'm working in Kenya, and chances to help normalize same-sex relationships here are actually quite valuable. There's pervasive homophobia, mainly due, I think, to an overly conservative theology and a complete lack of exposure since queers HAVE to be closeted here. So I at least get to have the conversations, as a straight visitor, that in fact I have a bunch of gay friends and they are fantastic people. If a facebook icon helps facilitate that conversation, all the better...
posted by kaibutsu at 2:50 PM on March 26, 2013 [6 favorites]


My out-the-ass predictions. One of two ways, denial of standing (which I think is more likely) or, Kennedy decides it's his legacy and his position provides cover for one other leading to a 6-3 decision to strike it. (and then Kennedy retires at the end of the year)
They certainly did not seem too inclined to rule on a very narrow basis so it'll be huge, or a win by TKO.
posted by edgeways at 2:56 PM on March 26, 2013


I'm betting that both decisions will be released in the last week of June, just in time for the celebrating of the Stonewall Riots, aka Pride.
posted by rtha at 3:04 PM on March 26, 2013 [4 favorites]


"The Guardian interactive team has put together this excellent breakdown of the hearing transcript and audio, with quotes and soundbites organized by topic and speaker. This is considerably more fun and informative than reading a government .PDF." *
posted by ericb at 3:15 PM on March 26, 2013


It's interesting how conservatives are now explicitly arguing that something should be illegal because it (supposedly) does not serve the interests of the government. I guess fear and hate trump supposedly basic fundamental principles.
posted by Flunkie at 3:18 PM on March 26, 2013 [5 favorites]


Regarding small tags: I'm going to take this opportunity to shamelessly plug one of my Metafilter-related Greasemonkey scripts: Embiggen the Smallest Metafilter. It lets you embiggen small text on Metafilter by mousing over it.
posted by Flunkie at 3:22 PM on March 26, 2013 [2 favorites]


Fox News Contributors Say Marriage Equality Would Criminalize Christianity
STARNES: You know, it’s as if we’re second-class citizens now because we support the traditional, Biblical definition of marriage, or perhaps we are pro-life, and that means we’re somehow second-class citizens who don’t deserve to be in the public marketplace of ideas.

RIOS (HOST): Absolutely. In fact, it’ll be worse than that. You know there’s going to be punishment. There will be tremendous punishment. If gay marriage is embraced by the country, if the Supreme Court goes south this week in its hearings, we are in for – of course, we’re not going to hear about it until June – but we are in for persecution like we have never seen it.

STARNES: Well, it’s already started.
Oh those poor martyred souls! Won't someone think of the Christians!
posted by Secret Life of Gravy at 3:26 PM on March 26, 2013 [13 favorites]


Yeah, it's funny how their idea of martyrdom is getting called bigots when they act all bigoted.

Every now and then, you'd hope that some of those assholes would either get a sense of perspective or literally be fed to lions. Either one, I'm not choosy.
posted by klangklangston at 3:32 PM on March 26, 2013 [20 favorites]


but we are in for persecution like we have never seen it.

It's amazing that it's totally fine to persecute and deny rights to gay and lesbian couples, but God forbid religious conservatives have to consider a world where they're not automatically given extra rights to rule over other people's lives...
posted by lesbiassparrow at 3:34 PM on March 26, 2013 [3 favorites]


we are in for persecution like we have never seen it.

INTOLERANCE OF MY INTOLERANCE WILL BE THE DEATH OF ME
posted by scody at 3:35 PM on March 26, 2013 [11 favorites]


That's aching for a country song.
posted by klangklangston at 3:38 PM on March 26, 2013 [4 favorites]


A little farther down at the same link, Eric Erickson, another FOX contributor wrote this:
Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan. In some places this is already happening.
Isn't a terrible shame that schools and businesses will have to have dealings with "those" people. Years ago it would have been Jews or Blacks. Now it is homosexuals. Sounds really Christian, doesn't it? I'm sure Jesus would be rolling in his grave if He hadn't already ascended into heaven.
posted by Secret Life of Gravy at 3:41 PM on March 26, 2013 [4 favorites]


Fox News Contributors Say Marriage Equality Would Criminalize Christianity

Of course they would say that. Christians have been silenced their whole lives.
posted by Blazecock Pileon at 3:43 PM on March 26, 2013 [7 favorites]


That's aching for a country song.

paging cortex
posted by scody at 3:45 PM on March 26, 2013 [1 favorite]


Hurf Durf Jesus' body eater.
posted by Secret Life of Gravy at 3:45 PM on March 26, 2013


Fundamentalist Christians know more about the sanctity of marriage than you could possibly imagine.
posted by Len at 3:47 PM on March 26, 2013 [1 favorite]


You know there’s going to be punishment. There will be tremendous punishment.

This? This is why I will listen to music on the drive home. Even asshole drivers who cut me off or don't use their turn signals don't deserve to have me accidentally hit them because I'm mad about something entirely else.

We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings.

That's just a fuckin' lie. Shut the fuck up, you lying sack of shit. Does your Holy Book not have things to say about how it's bad to lie? I believe it does.
posted by rtha at 3:47 PM on March 26, 2013 [4 favorites]


Riddle: Why is a marriage like a fishin' trip? Answer:
“The state’s require a marriage license,” King said. “A license is by definition a permit to do that which is otherwise illegal. Licenses are used to direct and regulate human behavior — a license to drive, a license to fish, a license to hunt, a license to cut hair, a license to do brain surgery, or a license to join the bar, or actually own a bar. And this is all a proper thing for our state to do because they are regulating and promoting certain kinds of activity and behavior.

“That’s why there is a marriage license,” he continued. “You have to meet the qualifications in the same fashion as all of the other licenses I have mentioned. Marriage is promoted by the states because that is the best way that we know how to promote the best of our culture and civilization into the next generation.”
Again with the next generation crap. I would really love to see some statistics on the percentage of marriages that involve procreation. I've been married twice and only one involved procreation-- so in my experience it is 50%.
posted by Secret Life of Gravy at 3:52 PM on March 26, 2013


I'm betting that both decisions will be released in the last week of June, just in time for the celebrating of the Stonewall Riots, aka Pride.

May the good fairy wot live in the sky grant yer every wish, rtha.
posted by Purposeful Grimace at 3:56 PM on March 26, 2013 [1 favorite]


Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay.

wow. they are still really, really angry about having to let black kids go to their segregation academies (even though that seemed to led to tokenism if anything).
posted by nadawi at 3:59 PM on March 26, 2013 [2 favorites]


Here's the whole goddamn argument (or at least what it should be):

Marriage is, in the eyes of the state, nothing more than a contract. It's not about love, procreation, culture, etc. It is a contract. If there is nothing in the law to prevent to men from entering a contract with each other, then there should be no law prohibiting two men from getting married. In order to sign a contract, you have to be a sound-minded independent adult. So if the two parties involved want to tie themselves to each other indefinitely, including property and access rights (which is all that a marriage comes down to, legally speaking: a contract between two parties giving full property and access rights), and they meet the requirements to enter into a contract otherwise, then who has a right to say they should or shouldn't?

Bring your religion into it all you want -- it's still just a contract, as far as the state is concerned. If you say "procreation", then you have to bar elderly people from ever getting married in their advanced age. If you say "God", then you have to bar all non-church weddings. If you say "tradition" then you have to remove all rights of women in marriage, as traditionally, marriage was a transfer of property -- "get this girl off my hands and I'll give you money and lands" -- ever heard of a dowry? Since you cannot legally (constitutionally) bar the elderly, eunuchs, the sterile, women with hysterectomies, impotent men, childless couples, atheists, agnostics, etc etc etc from getting married, then there remains no LEGAL argument to bar homosexuals from getting married to each other.

It's a matter of contracts. Nothing more. Any other argument is invalid.
posted by grubi at 4:12 PM on March 26, 2013 [31 favorites]


Eric Erickson, on Fox: “Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan. In some places this is already happening.”

Secret Life of Gravy: “Isn't a terrible shame that schools and businesses will have to have dealings with "those" people. Years ago it would have been Jews or Blacks. Now it is homosexuals. Sounds really Christian, doesn't it? I'm sure Jesus would be rolling in his grave if He hadn't already ascended into heaven.”

Well, there are some parallels to the civil rights movement, but even aside from them, his argument is clearly bogus, isn't it? As rtha put it (albeit more forcefully) this just isn't true. Churches today are not required to hold weddings for anybody. I have dear friends in Eastern Orthodox Christian churches, some even priests, but there is no way in hell that they'd let me get married in their churches because I'm not Eastern Orthodox. Hell, they could turn me away because they don't like my shoes if they wanted to. It's their discretion.

I don't know how this is so difficult for some people, but in case this very, very simple concept confuses folks: this has nothing to do with what private or even public businesses choose to do. The fact that two people have a right to a marriage license which legitimates the government sanction of their marriage means that the only office or public building anywhere that this affects is the county building where they issue marriage licenses. Like straight Catholics, straight Atheists, straight Mormons, straight FSMers, straight metalheads, straight punks, whatever, gay people will still have to find venues that are mutually agreeable to all persons involved.

There is no possibility whatsoever that Equal Protection is going to be extended to the choice of wedding venues; Chik-Fil-A will not be required to host gay weddings and orgies in their kiddie play room. I mean, can you imagine what the world would be like if Equal Protection guaranteed a right to have a wedding wherever and whenever you wanted? Believe you me, there would be plenty of angry straights demanding that cute little chapel on the hill and that nice lawn in the center of the park downtown, and the Supreme Court would be booked solid on 14th Amendment cases for the next decade.
posted by koeselitz at 4:15 PM on March 26, 2013 [8 favorites]


Well, that and the Fourteenth Amendment. Equal Protection counts.
posted by grubi at 4:15 PM on March 26, 2013


(Sorry, my remark was an addendum to my previous comment, not koeselitz's.)
posted by grubi at 4:16 PM on March 26, 2013


In case you wondered about it (as I did), in response to my ask question yesterday there were predictably no stories forthcoming about churches that actually lost nonprofit status from being on the wrong side of the interracial marriage question. (though one footnote about a school losing out in its attempt to forbid interracial dating of its students)
posted by jepler at 4:18 PM on March 26, 2013 [1 favorite]


By the way, if you were afraid that Texas might go all gay on you? fear not! The Governor was there to speak at the Texas Faith and Family rally today and assured the crowd that “in a twisting of logic they want to silence the religious in the name of tolerance. Where is the tolerance in that? Somewhere along the way we lost our way, not to mention our common sense.”
“Our core values are being attacked on a daily basis … by government fiat in our courts and in our schools, “ said state Sen. Donna Campbell, R-New Braunfels. “They want to redefine marriage between a natural man and natural woman the same way the want to redefine the Constitution. It’s just not going to stand with me.”

Campbell said these values had to be defended here, “because there is no other Texas to move to.”

“The hope of America is Texas,” said Sen. Ken Paxton.
Phew! That's a load off my mind. If Texas couldn't be a bastion of gay bashing I don't know where we would be.
posted by Secret Life of Gravy at 4:20 PM on March 26, 2013


“The hope of America is Texas,” said Sen. Ken Paxton.

Reminds me of this shirt.
posted by drezdn at 4:24 PM on March 26, 2013


Don't we have enough substantive debate from SCOTUS to chew on without paying attention to people on FOX News setting their hair on fire?
posted by dry white toast at 4:27 PM on March 26, 2013 [1 favorite]


There is no possibility whatsoever that Equal Protection is going to be extended to the choice of wedding venues

There have been several lawsuits against wedding venues and photographers who have refused to participate in gay weddings, so I'm not sure that's a settled argument.
posted by girlmightlive at 4:28 PM on March 26, 2013


There is no possibility whatsoever that Equal Protection is going to be extended to the choice of wedding venues; Chik-Fil-A will not be required to host gay weddings and orgies in their kiddie play room. I mean, can you imagine what the world would be like if Equal Protection guaranteed a right to have a wedding wherever and whenever you wanted?

My snarky response (about dealing with "those" people) was looking beyond the wedding venue. Christian schools kicking out the children of a gay couple has already been mentioned, but then I would assume most Christian schools require you to be a member of their congregation. However there was a case recently of a bakery refusing to sell (cup?)cakes when they found out it was for a gay wedding. Can a dressmaker do that? What about a jewelry store refusing to sell wedding rings? Aside from venues, can businesses flat out refuse to do business with gay couples? I would think not, but I was challenged on this point recently.
posted by Secret Life of Gravy at 4:28 PM on March 26, 2013


Well, there are some parallels to the civil rights movement, but even aside from them, his argument is clearly bogus, isn't it?

Well the argument as a whole was mixed I'd say.

"Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan. "

The latter could certainly be true, depending on how you interpret it. If sexual orientation is given the same protection as race/religion/etc, then private businesses are NOT free to discriminate against people based on sexual orientation.

Religion has special exemptions in US law that make the church argument bogus.

I don't know where a religious private school falls, probably on the church side of things so also bogus.
posted by wildcrdj at 4:40 PM on March 26, 2013


(Similarly, a private business could potentially get in trouble for not extending to same-sex married couples what it does to opposite-sex married couples, if sexual orientation is a protected class, so its relevant even to the narrower subject of gay marriage).
posted by wildcrdj at 4:42 PM on March 26, 2013


christian schools don't require you be a member of their congregation, at least not all of them. a former segregation academy took my mormon, juvenile delinquent brother until they kicked him out for breaking the rules.
posted by nadawi at 4:42 PM on March 26, 2013


Aside from venues, can businesses flat out refuse to do business with gay couples? I would think not, but I was challenged on this point recently.

In Washington, this could result in a lawsuit against the business:
It's scores of people like this—people who think Freed and Ingersoll are sinners—who may give the couple reason to be wary of filing a lawsuit, because it risks provoking a backlash from the religious right.

Take the anti-gay-marriage campaigns in four states voting on gay-marriage proposals last November. Advertisements funded in part by the National Organization for Marriage cited antidiscrimination cases brought in states that have legalized gay marriage to argue that business owners, parents with kids in schools, and others will be forced to violate their religious mores by recognizing same-sex-marriage laws. It was a clever ploy to cast antigay conservatives as the victims of discrimination themselves. (Representative Matt Shea made this argument when gay marriage was debated in the legislature, saying, "I find it very ironic that we have a bill that claims to be about equality but would actually institutionalize discrimination against Christians... If you are a florist, this bill has no protections for you.") As the country considers future gay-marriage laws, filing a lawsuit against Arlene's Flowers could arguably make Freed and Ingersoll the new whipping boys of Christian conservatives.

But Freed and Ingersoll don't necessarily need to file a lawsuit. The Washington State Human Rights Commission could independently seek a settlement or sue on their behalf. "We don't do a whole lot of commission-initiated complaints, but it is something the commission has the power to do," explains commission spokeswoman Laura Lindstrand.

If the couple does choose to file a lawsuit, which would likely establish clear case law, the state is brimming with legal advocates loaded for bear to make their case. But if this couple doesn't elect to pursue this case, they shouldn't have to. The state should. The Human Rights Commission has an obligation to guarantee that businesses don't act with impunity to treat gay people as second-class citizens. These are relatively new laws—both the antidiscrimination law and the marriage law—and the state should enforce them, even if couples don't want to personally file lawsuits and become activists for civil rights.
However, if DOMA isn't repealed, could a business that is found to discriminate against married gay couples in violation of Washington state law take an appeal to the Supreme Court?
posted by Blazecock Pileon at 4:43 PM on March 26, 2013


Beliefs cost nothing to change within one's own mind, save for a little pride, maybe, but beliefs can be use to exact priceless costs on everyone else.

Beliefs are funny like that.
posted by roboton666 at 4:52 PM on March 26, 2013


Quasi self-link (I didn't write it, but I work there): Brenda Feigen, co-founder of Ms. Magazine and former VP of NOW attended the hearing and wrote about it.
posted by klangklangston at 4:58 PM on March 26, 2013 [1 favorite]


There have been several lawsuits against wedding venues and photographers who have refused to participate in gay weddings, so I'm not sure that's a settled argument.

I remember the one (was there more than one?) about the photographer, but do you have any links for the venues? And were those venues specifically religious? Because I can't believe the religious right would refrain from shouting about this, and I don't recall ever hearing anything.

When my friends Jen and Sue got commitment ceremonied back in 2000, they had to find a Methodist minister and a rabbi. No trouble finding the Methodist minister to perform a same-sex ceremony, and no trouble finding a rabbi to participate....except for the part where it was a mixed marriage, religiously speaking. Took them a lot of phone calls to find a rabbi who was fine with that part. We all found that very amusing.
posted by rtha at 5:01 PM on March 26, 2013 [1 favorite]


Denied dream wedding site, lesbian couple files discrimination complaint. That venue is not specifically religious, but the owners' cited their personal beliefs on gay marriage.

Vermont's Wildflower Inn Settles Gay Marriage Lawsuit With Lesbian Couple. These owners said they are against gay marriage because they are Catholic but were willing to host gay weddings. Again, not a specifically religious venue.
posted by girlmightlive at 5:13 PM on March 26, 2013


Yeah, those aren't churches. Sorry, but not the same at all. There are people who really, sincerely believe that God wants them to have nothing to do with black people (for instance), but if they're running a business like an inn or a hotel or a conference center etc., they are prohibited by law from discriminating on the basis of race.
posted by rtha at 5:17 PM on March 26, 2013 [3 favorites]


Past lawsuits brought by LGBT folks for businesses turning them away have often been decided to be discrimatory when anti-discrimination and public accommodation laws in those cities and states identify LGBT people to be a protected class.

If you provide a product or service for sale to straight people, you have to offer such to gay people. Your private religious objection does not trump public accommodation.
posted by ericb at 5:21 PM on March 26, 2013 [6 favorites]


I remember the one (was there more than one?) about the photographer, but do you have any links for the venues? And were those venues specifically religious?

There was one lawsuit about a church-owned property that marriage equality opponents like to bandy about, but what actually happened is that the church had to decide between its special tax exemption for keeping that piece of property open to the public, or being able to ban gay people from having commitment ceremonies there.
posted by Blue Jello Elf at 5:23 PM on March 26, 2013


if they're running a business like an inn or a hotel or a conference center etc., they are prohibited by law from discriminating on the basis of race.

That's what makes the case about the photographer interesting and why it went to the New Mexico Supreme Court:
Proponents and opponents have been weighing in, adding nuance to each side of the argument.

The ACLU filed an amicus brief in support of Willock, arguing that “a commercial business cannot solicit customers from the general public to buy its services as a photographer for hire and then claim that taking those photographs is a form of its own autonomous expressive activity.”

The Cato institute filed in favor of the studio, citing the 1977 U.S. Supreme Court decision Wooley v. Maynard, in which a family was excused from displaying the New Hampshire state motto, “Live Free or Die,” on their car license plate on the grounds that it violated their freedom of religion.

“Wooley secures an important constitutional right to which speakers and those who create speech are entitled — whether they are religious or secular, liberal or conservative, pro-gay rights or anti-gay rights,” the brief argues. “Those whose consciences, whether religious or secular, require them to refuse to distribute expression ‘which [they do] not completely accept,’ are constitutionally protected in that refusal.”

The nature of wedding photography, the CATO brief asserts, compels the photographer to depict the ceremony as “a beautiful, praiseworthy, even holy event” which could jeopardize a person’s “freedom of mind” if she thought the event profane.

Whatever the New Mexico court’s decision, the case could then be appealed to the U.S. Supreme Court on the First Amendment question.
posted by girlmightlive at 5:24 PM on March 26, 2013


Related previous FPP: Photographing gay weddings: a moral quandry?
posted by ericb at 5:31 PM on March 26, 2013


As a 61-year old gay man, I can only say that the shift in public opinion has been breathtaking. I never thought I'd see it in my lifetime, but here we are. After listening to the justices' concerns, I expect a narrow ruling that will, hopefully, let the defeat of Prop 8 stand.

I'm very much looking forward to tomorrow. The Windsor case is more straightforward than Prop 8, and it features a plaintiff who has suffered real damages as a result of DOMA. If it's really about states' rights, then the federal government should acknowledge her marriage, just as New York does. Not that I expect a broad ruling, but it's the perfect case for this venue.
posted by Short Attention Sp at 5:34 PM on March 26, 2013 [9 favorites]


The thing to keep in mind about the photographer is that the suit took place in a state where Same Sex Marriage is not legal. So you can see that the issues are, though vaguely related, not directly connected to one another.

Making Same Sex Marriage legal in Wyoming (or wherever) wouldn't make their non-discrimination laws say anything different afterwards than they did before.

What's going on, really, is that both non-discrimination and SSM are manifestations of the same thing, growing social and public acceptance of gay people. But SSM doesn't lead to non-discrimination lawsuits any more than non-discrimination lawsuits lead to SSM.

Slowly ebbing levels of hate lead to both.

No wonder conservatives disapprove.
posted by Myca at 5:34 PM on March 26, 2013


There was one lawsuit about a church-owned property that marriage equality opponents like to bandy about...

Exactly.

Opponents of same-sex marriage (such as the National Organization for Marriage) like to "muddy the waters" by falsly citing that case of Ocean Grove Camp Meeting Association (New Jersey), claiming that same-sex marriages will lead to lawsuits against churches.

The facts of the case: Ocean Grove Camp Meeting Association, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the New Jersey Division on Civil Rights.

Over the years the association has accepted public funds* for maintenance and repairs of the pavilion and rented it often to straight couples for their weddings. The pavilion "is apart from church premises and open to the public. In order to obtain a tax exemption, they entered into an agreement that specified that they would comply with New Jersey anti-discrimination laws."

The New Jersey Division on Civil Rights ruled that the boardwalk property was indeed open for public use, therefore the Methodist group could not discriminate against gay couples using it. The finding [PDF] was deemed "unlawful public accommodation discrimination based on civil union status."

As a result of the finding, the state's Department of Environmental Protection revoked a portion of the association's tax benefits.

* - "U.S. Representative Frank Pallone, Jr. (Democrat), in whose Congressional district Ocean Grove is located, stated 'they've taken state, federal and local funds by representing that they are open to the public.'"
posted by ericb at 5:40 PM on March 26, 2013 [8 favorites]


The 60 Best Signs Against DOMA And Prop 8 At The Supreme Court
posted by ThePinkSuperhero at 5:49 PM on March 26, 2013 [6 favorites]


Those signs are great. I think this one is my favorite.
posted by homunculus at 6:03 PM on March 26, 2013 [1 favorite]


I just don't understand how Cooper's argument about marriage needing to preserve "traditional procreative purposes" has any weight at all in a court of law. Cooper says gay marriage will "refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples." The Court reasonably points out that there are plenty of heterosexual marriages that are entirely about the "emotional needs and desires of adults," what with being between people over 55 (and thus almost certainly unlikely to have children) or between people who are infertile or otherwise have no intention of having children. Cooper's response to that (at around pages 24-27 of the transcript) just makes no sense to me. Something about how even if some couples can't/won't have children and thus don't preserve the "traditional procreative purposes" of marriage, they still do because status quo? What?

I also found his answer hard to understand. He wasted a lot of time by doubting whether a man and woman who are both over 55 would have trouble conceiving.

Here's the only substantive answer I heard from him: Marriage should be about protecting monogamy and fidelity. And (again, according to him), it's also about procreation. Once he's established that marriage is about those things, he goes on to argue that it's also about restraining men — who can be expected to stay fertile their whole lives — from going around procreating outside the context of marriage. So, according to his argument, if you're an opposite-sex married couple and you're both over 55, the raison d'être of your marriage is that it stops the husband from cheating in a way that has a significant chance of getting someone pregnant.

I wish I were making this up.
posted by John Cohen at 6:27 PM on March 26, 2013 [2 favorites]


By the way, the exchange about a ban on opposite-sex marriages where both people are over 55 is at 28:10 - 31:50 in the mp3 you can download from the Supreme Court's website.
posted by John Cohen at 6:58 PM on March 26, 2013


So, according to his argument, if you're an opposite-sex married couple and you're both over 55, the raison d'être of your marriage is that it stops the husband from cheating in a way that has a significant chance of getting someone pregnant.

Well, that seems...regressive, to say the least. I know I shouldn't be surprised, and yet. What a repellent way to look at the modern institution of marriage. Thanks for taking a stab at untangling that, John Cohen, I wasn't following it at all in the transcript.
posted by yasaman at 6:59 PM on March 26, 2013 [1 favorite]


CNN reporting that SCOTUS has upheld the gay marriage mandate. Everyone must be gay married by December 31.
posted by Hollywood Upstairs Medical College at 7:16 PM on March 26, 2013 [22 favorites]


It's a matter of contracts. Nothing more.

By this logic, not only should same-sex marriage be legal, but three-or-more-party marriage (contracts require at least two parties, not exactly two parties), marriages traditionally regarded as incestuous (siblings can enter into contracts) and even marriages in which one or more parties is a corporation.

In any case, marriage generally is more than a contract, in that some of the benefits of marriage can't be achieved by contract. For example, spousal privilege. You can't have your communications with another party made privileged simply by entering into a contract with them, and it's easy to imagine reasons why such a thing should not be permitted. (This is why the libertarian "the government shouldn't define marriage at all, just do it all with contracts" argument fails.)
posted by DevilsAdvocate at 7:41 PM on March 26, 2013 [2 favorites]


[A few comments removed. If you're not trolling, it's up to you to make that clear.]
posted by LobsterMitten at 7:47 PM on March 26, 2013


The 60 Best Signs Against DOMA And Prop 8 At The Supreme Court
#60 - claiming that someone else's marriage is against your religion is like being angry at someone for eating a donut because you're on a diet.


Wait a minute, I do get angry at the happy donut eaters when I'm dieting. This now makes me homophobic? I'm confused.
posted by benito.strauss at 8:12 PM on March 26, 2013


Here's the only substantive answer I heard from him: Marriage should be about protecting monogamy and fidelity. And (again, according to him), it's also about procreation. Once he's established that marriage is about those things, he goes on to argue that it's also about restraining men — who can be expected to stay fertile their whole lives — from going around procreating outside the context of marriage. So, according to his argument, if you're an opposite-sex married couple and you're both over 55, the raison d'être of your marriage is that it stops the husband from cheating in a way that has a significant chance of getting someone pregnant.

That was how I heard it too, leading to the obvious conclusion that we have to legalize marriages between same sex couples with at least one bisexual partner in order to keep them from procreating with an opposite sex partner outside of marriage.
posted by Drinky Die at 8:20 PM on March 26, 2013 [3 favorites]


Actually, I guess if it isn't clear homosexuality isn't a choice we can't trust any same sex couple. Someone could easily choose to procreate outside the partnership in that case if we don't let them marry.
posted by Drinky Die at 8:23 PM on March 26, 2013


The AG's client is the voters of the State of California.

Nope, you can read the oath of office yourself. It isn't sworn to the voters. It is sworn to defend the constitution. If new law is in conflict with the existing constitution, the AG cannot defend it in good conscience. That would be a violation of the oath.

As another example, the Obama administration is refusing to defend DOMA, considering it unconstitutional. Obama took an oath to defend the constitution. His client is not the voters or Congress.
posted by JackFlash at 8:52 PM on March 26, 2013 [6 favorites]


That was how I heard it too, leading to the obvious conclusion that we have to legalize marriages between same sex couples with at least one bisexual partner in order to keep them from procreating with an opposite sex partner outside of marriage.

Yes. Of course, that's impossible, since the government doesn't keep records of people's sexual orientation. The government does have records of people's gender, and that's the basis of the discrimination. That's why it's incorrect to say the government prevents "gay people" from marrying. That drastically understates the problem by making it sound like the prohibition applies only to the roughly 3% of people who are gay. It prevents everyone from marrying someone of the same sex. Whether the people who want to do that identify as "gay," "bisexual," "mostly straight," "asexual," or anything else is irrelevant from the government's point of view.
posted by John Cohen at 8:59 PM on March 26, 2013 [1 favorite]


Nope, you can read the oath of office yourself. It isn't sworn to the voters. It is sworn to defend the constitution. If new law is in conflict with the existing constitution, the AG cannot defend it in good conscience. That would be a violation of the oath.

As another example, the Obama administration is refusing to defend DOMA, considering it unconstitutional. Obama took an oath to defend the constitution. His client is not the voters or Congress.

With DOMA, however, the House was able to step up in that role.

This seems to be a situation where nobody from the government was able or willing, so the role is left to the voters who passed it. It seems pretty reasonable to me from my non-lawyer perspective.
posted by Drinky Die at 8:59 PM on March 26, 2013


Okay so trying to learn anything from oral arguments is like reading tea leaves, and just about as informative and meaningful.

That said, for all the talk of Loving v. Virginia and Brown v. Board, which would seem to be the obvious precedent here, the subject matter and tenor of the questioning made me wonder whether the court wasn't going to hew closer to U.S. v. Carolene Products.

In that case, Carolene Products appealed a federal regulation prohibiting the sale of "filled milk" on the grounds that the government relied on non-existent science it more or less pulled out of its ass to say that "filled milk" was injurious to the public. The court said that didn't matter, as long as the state had a rational basis for crafting the law at all.

Which seems bad, especially in light of all of that stuff about "legitimate debate over deletrious effects on children raised in same-sex households."

But Carolene is not famous for it's central ruling, but rather for it's 4th Footnote, which says that a higher degree of scrutiny could be applied to laws affecting "discrete and insular minorities."

So, again, tea leaves, but I don't think it's out of the question to have this ruling determine whether gays and lesbians are a suspect class (which might not actually be the best thing, in reality. Personally I think it'd be better if Prop 8 were thrown out under Rational Basis, but there are definitely pros and cons.)
posted by Navelgazer at 11:03 PM on March 26, 2013


John Cohen: " That's why it's incorrect to say the government prevents "gay people" from marrying. That drastically understates the problem by making it sound like the prohibition applies only to the roughly 3% of people who are gay. It prevents everyone from marrying someone of the same sex. Whether the people who want to do that identify as "gay," "bisexual," "mostly straight," "asexual," or anything else is irrelevant from the government's point of view."

Sure, but let's imagine for a second the government banned the sale of left-handed scissors. Technically, it's not preventing left-handed people from buying left-handed scissors, it's preventing everyone from buying left-handed scissors. Functionally, however, the law is standing in between a class of individuals (the left handed) and a freedom enjoyed by other classes of individuals (the comfortable use of scissors).

The petitioners' argument here rests on the notion that the purpose of civil marriage, as we as a total culture understand it, is to legitimate children, and that the government is not required to open that institution to relationships which do not fulfill its purpose. Respondents are arguing that straight people, in addition to that governmental purpose, derive other benefits from marriage (social recognition of one's beloved monogamous partner) which the government is effectively preventing gay and lesbian people from achieving. This is the essence of the heightened scrutiny idea: it's why, for example, it wasn't particularly relevant that literacy tests for voting were required for white voters, rather that literacy tests were created with the intent of preventing a certain class of individuals from voting.

I make the argument up thread that the government's purposes as identified by petitioners are actually a childrearing purpose (not a procreative purpose) and therefore are best fulfilled by legalizing gay marriage, but you don't even really have to buy that. Heightened scrutiny says, as the respondents point out here, that the choice by a state government, or a state referendum, to define civil unions as a separate and unequal alternative to marriage or to amend a state constitution to prohibit gay marriage where it otherwise would have been legal violates that heightened scrutiny provision, and thus violates the Equal Protection Clause.
posted by Apropos of Something at 11:49 PM on March 26, 2013 [5 favorites]


In Paris, France, this weekend there was a demonstration against the government's plan to legalise same sex marriage. Apparently 300,000 people were present though the organisers claim between 800,000 and 1.4 million according to different sources.

I received an e-mail via the Evangelical Christian mailing list associated with my work (ugh...) suggesting we go make our feelings known on a poll asking people to say whether this demonstration should cause the government to stop pursuing this potential law.

Visiting the site linked in the e-mail was disheartening. I clicked "Non, la rue ne dicte pas la loi" (The street doesn't dictate the law) - i.e. no this demonstration shouldn't cause the law to be withdrawn to discover that, amongst just over 16,000 votes, only 3% of us voted "no". We've still got a way to go here in Europe despite same sex marriage being legal in 11 European countries.

I doubt however that the sender of the e-mail expected any "no" votes from the recipients of his e-mail. Glad to go against the flow.
posted by IncognitoErgoSum at 3:53 AM on March 27, 2013 [1 favorite]


" That's why it's incorrect to say the government prevents "gay people" from marrying. That drastically understates the problem by making it sound like the prohibition applies only to the roughly 3% of people who are gay. It prevents everyone from marrying someone of the same sex. Whether the people who want to do that identify as "gay," "bisexual," "mostly straight," "asexual," or anything else is irrelevant from the government's point of view."

Sure, but let's imagine for a second the government banned the sale of left-handed scissors. Technically, it's not preventing left-handed people from buying left-handed scissors, it's preventing everyone from buying left-handed scissors. Functionally, however, the law is standing in between a class of individuals (the left handed) and a freedom enjoyed by other classes of individuals (the comfortable use of scissors).


"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Sarcasm off now.

It seems to me that the notion that marriage's main goal is the legitimizing of children was a poor choice of tactic for them to use. (Thankfully.) If that was the point of marriage, what's with all the other stuff, like financial co-mingling, special rights in inheritance, hospital visits, legal testimony, the difficulty of divorce and whatnot? If marriage was primarily about children, why aren't there any laws making it illegal to have children out of wedlock, or not allowing divorce when there are young children? Of course, the answer is that civil marriage is about a lot more than children.
posted by gjc at 4:43 AM on March 27, 2013


In any case, marriage generally is more than a contract, in that some of the benefits of marriage can't be achieved by contract. For example, spousal privilege. You can't have your communications with another party made privileged simply by entering into a contract with them, and it's easy to imagine reasons why such a thing should not be permitted. (This is why the libertarian "the government shouldn't define marriage at all, just do it all with contracts" argument fails.)

I think the argument for spousal privilege was from the other angle- that spouses are not competent witnesses for or against each other because of the built in prejudices they will have toward keeping the other out of trouble. Anyway, I don't think the privilege is all that different from standard hearsay rules.

Regardless, the government can easily create a framework that legitimizes this privilege regardless of marital status. If a contract demands X, Y and Z reponsibilities from each party, then as long as the parties maintian that fidelity to each other, privilege can hold.
posted by gjc at 4:54 AM on March 27, 2013


Those signs are great. I think this one is my favorite.

My favorite is the one that says "Stop Being Mean" because that's how I feel about the whole thing...just stop being so fucking mean. Stop being cruel and thoughtless and thinking about gay people as though they are not fully human. Start embracing love, start reaching out with joy and kindness to your fellow human beings.
posted by Secret Life of Gravy at 4:55 AM on March 27, 2013 [16 favorites]


If that was the point of marriage, what's with all the other stuff, like financial co-mingling, special rights in inheritance, hospital visits, legal testimony, the difficulty of divorce and whatnot?

This comment remarkably misses the point. The point of "all the other stuff" is to encourage stable two-parent households. Everything you just mentioned makes marriage very expensive to the government. The government loses tens of billions of dollars on marriage in terms of tax exemptions, Social Security survivor's benefits, and the like. In effect, the government subsidizes marriage. The policy of the subsidy is the state's propagation of itself.

Why do you think the government issues marriage licenses? Do you think the reason was, "we think love is important, so we are going to spend billions of dollars each years on public declarations of love"?
posted by Tanizaki at 7:03 AM on March 27, 2013


The point of "all the other stuff" is to encourage stable two-parent households.

No, the point is to encourage stable two-person households, which are the most basic unit of 'family' in this country. The fact is, we have NEVER failed to acknowledge the legitimacy of a marriage without children.
posted by showbiz_liz at 7:23 AM on March 27, 2013 [5 favorites]


Jacob Combs | Equality on Trial:
Today’s hearing will be twice as long as yesterday’s, with the first fifty minutes devoted to questions of jurisdiction (whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA and whether the Supreme Court has jurisdiction to hear the Windsor case when Edie Windsor and the federal government both agree that DOMA is unconstitutional). The second half of the arguments will consist of an hour of discussion of the case on the merits.

Yesterday’s hearing was very wonky and procedurally oriented: the Justices spent a significant amount of time talking about issues of standing, and even once we got to the merits, we stayed in the weeds of legalese. What surprised me yesterday was that there was very little discussion of what level of scrutiny should be applied to laws that affect gays and lesbians: whether they should be viewed under the more deferential rational basis standard or the more searching heightened scrutiny standards. Part of this issue has to do with whether or not gays and lesbians are a ‘suspect class’: one based upon an immutable characteristic that has suffered discrimination and the whims of majoritarian opinion.

The relative lack of scrutiny questions yesterday could well be due to the fact that the Court knows it will have to address scrutiny during today’s arguments. In fact, the fate of DOMA may rest entirely on the level of scrutiny under which it is reviewed, since the federal government and BLAG both argue it can survive rational basis scrutiny. (Windsor argues it must fail any level of scrutiny, the federal government believes it fails heightened scrutiny, and BLAG says the law can survive any level of scrutiny.)
posted by ericb at 7:28 AM on March 27, 2013


I think the argument for spousal privilege was from the other angle- that spouses are not competent witnesses for or against each other because of the built in prejudices they will have toward keeping the other out of trouble.

I don't think that's the case. If it were, spouses would be forbidden from testifying for or against each other. But spousal privilege only means that spouses cannot be compelled to testify on the content of their conversations. Spouses may still choose to voluntarily testify—which would not be the case if the rationale were that spouses were incapable of testifying competently. And the question of the honesty of witnesses is, in general, an issue which the opposing side is free to raise, and for the jury to decide.

Regardless, the government can easily create a framework that legitimizes this privilege regardless of marital status.

As I alluded to (but perhaps should have made explicit) this is probably a bad idea. Should individiuals engaged in a criminal enterprise be able to privilege their conversations with each other by means of contract? Should employees of a corporation agree, as part of their employment contract, that any conversations conducted in the course of their business are privileged? I don't believe this is desirable.
posted by DevilsAdvocate at 7:29 AM on March 27, 2013


The point of "all the other stuff" is to ...

... provide access to the over 1,138 federal rights and benefits to same sex married couples that their straight counterparts enjoy.

Here's a small subset:
"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 7:40 AM on March 27, 2013 [12 favorites]


While I like the elegance of refactoring marriage into types of modular contractual relationships, I suspect that as soon as you had some implementation of spousal privilege (“A party may not be compelled to testify against another party if...”), sooner or later, some group of robber-barons would buy a rider to a bill that would extend such privilege to another class of contracts, which has nothing to do with marriage but is convenient to them, and thus we'd get something like Citizens United, where the powerful are literally above the little people's laws.

So, in short, keeping the law a messy, unhackable tangle of archaisms could be seen as a defence mechanism against it being too quickly subverted into an apparatus of extraction and enslavement operated on behalf of one elite or another. Which, from a software-engineering point of view, seems ugly (like writing your code as a multi-gigabyte nest of GOTOs so that nobody hacks it), though I imagine it's the sort of thing Edmund Burke was getting at.
posted by acb at 7:54 AM on March 27, 2013 [2 favorites]


Well, this doesn't sound promising:

@SCOTUSblog: #doma jurisdiction argument continues with no clear indication of whether a majority believes #scotus has the power to decide the case.

That seems awfully hypocritical of them. They won't decide Perry because they're not sure they want a national policy just yet, but they don't want to get rid of an existing national policy? This just sounds like Kennedy and Roberts being cowards and/or dicks again.
posted by zombieflanders at 7:56 AM on March 27, 2013


There are reasonably valid justifications to throw out Perry on jurisdiction/standing grounds, but the fucking DOMA case?! It's a federal law that denies benefits to a group of people who would otherwise receive them - how is there not an injury redressable by the Supreme Court?

Fuck Anthony Kennedy in the nose.
posted by Holy Zarquon's Singing Fish at 8:00 AM on March 27, 2013


They won't decide Perry because they're not sure they want a national policy just yet, but they don't want to get rid of an existing national policy?

Slow your roll, man! None of these things are at all certain. These cases have not been decided. Not by a long shot. And asking questions about jurisdiction could be as simple as "are we allowed to rule on this case? Yes? Ok!"

SCOTUSblog is not the actual Supreme Court and they have no idea how these cases will be decided.
posted by showbiz_liz at 8:01 AM on March 27, 2013 [3 favorites]


Yes, but their reporter was at argument and can presumably tell the difference between perfunctory jurisdictional ass-covering and actual questioning. The idea that jurisdiction/standing is an issue at all in DOMA is disheartening, because it really really shouldn't be.
posted by Holy Zarquon's Singing Fish at 8:06 AM on March 27, 2013 [1 favorite]


None of these things are at all certain. These cases have not been decided. Not by a long shot.

No one is saying they are.

And asking questions about jurisdiction could be as simple as "are we allowed to rule on this case? Yes? Ok!"

They spent most of an hour and a half talking about fucking jurisdiction in a case where it's not clear-cut. But this is a federal law, and they are the federal judiciary body. Where the hell else would the jurisdiction be?

SCOTUSblog is not the actual Supreme Court and they have no idea how these cases will be decided.

Again, no one is saying anything about a decision. But they do know what seems unusual, and this sounds unusual. They're basically refusing to make a judicial decision on gay marriage at all, which is unusual because they, y'know, chose to take these cases.
posted by zombieflanders at 8:10 AM on March 27, 2013


Chief Justice John Roberts told attorney Sri Srinivasan, the principal deputy solicitor general, that the government's actions were "unprecedented." To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is "has never been done before," he said.

Well, I do think this is an interesting question. Of course I want to see the whole law thrown out, but if this is really unprecedented then I'm not at all surprised that they're asking questions about it.
posted by showbiz_liz at 8:10 AM on March 27, 2013


In effect, the government subsidizes marriage.

And that subsidy is available to heterosexual married couples even if they don't have children. It's available to them even if they don't want children, or can't have them, or have them via adoption rather than biologically.
posted by rtha at 8:10 AM on March 27, 2013 [5 favorites]


Well, I do think this is an interesting question. Of course I want to see the whole law thrown out, but if this is really unprecedented then I'm not at all surprised that they're asking questions about it.

If they were worried about setting precedent, then they should have refused cert in the first place. This just sounds ridiculous.
posted by zombieflanders at 8:13 AM on March 27, 2013


Re: Roberts, that is an interesting question, but I don't see how it has a thing to do with jurisdiction. And isn't declining to defend the law's merits but enforcing it anyway because it's the law exactly what California's doing with Prop 8?
posted by Holy Zarquon's Singing Fish at 8:33 AM on March 27, 2013 [1 favorite]


Do we have a transcript of the DOMA hearings yet?
posted by Lemurrhea at 8:47 AM on March 27, 2013


They're still ongoing, and will be for another hour.
posted by zombieflanders at 8:48 AM on March 27, 2013


Ahh, right on.
Here is a liveblog if anyone else wants.
posted by Lemurrhea at 8:50 AM on March 27, 2013


But good lord some of the things that are being reported are bizarre. Roberts apparently just said that the President should make a personal determination about whether the law is constitutional rather than asking the court to do so? There must be more to that little story because... HUNH!?
posted by jph at 8:51 AM on March 27, 2013


Justices asked skeptical questions of Ms. Jackson, suggesting that they didn’t buy her arguments that neither the House members who defend DOMA nor the executive branch have an interest in the case.

Ms. Jackson was appointed by the Court to make that argument. So my guess as to what's going on is that part of the reason to take cert in this case was in fact to look at the validity of the setup. Which seems fair enough; how could the SCOTUS ever rule on this issue if the proper action was to deny cert?

We'll see what happens in 3 months or so.
posted by Lemurrhea at 8:55 AM on March 27, 2013


zombieflanders, only four justices need to agree on cert. This means that justices who didn't join the acceptance of cert might be very interested in deciding the case on non-substantive grounds or are just expressing a previously held position that jurisdiction isn't appropriate. If you imagine that the four more liberal justices were the four who agreed on cert, this would seem to make particular sense.
posted by MoonOrb at 8:56 AM on March 27, 2013


SCOTUSblog just posted a final update on Twitter, so I guess they are close to done. They suggest there are 5 votes to get rid of DOMA.
posted by roomthreeseventeen at 9:07 AM on March 27, 2013


And specifically it says:

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

It's rare that the phrase "states' rights'" makes me giggle. But that's the world we live in.
posted by MCMikeNamara at 9:14 AM on March 27, 2013 [2 favorites]


317, there's another 40ish minutes left. I've been following this liveblog.
posted by showbiz_liz at 9:20 AM on March 27, 2013


showbiz_liz, not sure where you're getting that info from, but they are over.
posted by roomthreeseventeen at 9:23 AM on March 27, 2013


Yeah, that "live blog" is more like a "Memorex blog"

PROGRAMMING NOTE: In real-time, the arguments ended at 12:14 p.m. We'll continue with our updates as quickly as we can.

I'm only bringing this up not to call anyone else out (because I was following it too) but because it was hilarious to me.
posted by MCMikeNamara at 9:25 AM on March 27, 2013 [1 favorite]


It's rare that the phrase "states' rights'" makes me giggle.

All you Yankees think we fought the Civil War over slavery. Well, that couldn't be further from the truth; we were actually fighting for gay marriage.
posted by Greg Nog at 9:28 AM on March 27, 2013 [13 favorites]


Now we know why Rhett Butler frankly didn't give a damn.
posted by MCMikeNamara at 9:37 AM on March 27, 2013 [1 favorite]


NBC News: Justices signal they might strike down federal marriage law.
posted by ericb at 9:44 AM on March 27, 2013


zombieflanders: “If they were worried about setting precedent, then they should have refused cert in the first place. This just sounds ridiculous.”

You're focusing too much on what what the Supreme Court might rule, I think. They have a point. It was more than a little silly for the Obama administration to declare, with the agreement of a federal appeals court, that a law is unconstutional, and yet still insist on enforcing said law until the Supreme Court weighs in.

I mean, rationally, what should have happened is the Obama administration should have accepted the rulings in the courts of appeal and just stopped enforcing the law as unconstitutional. The Supreme Court would never have had to weigh in, and DOMA would already have been dead in the water. But instead, the Obama administration, even though it claims to agree with the previous ruling against DOMA, chose to appeal that ruling up to the Supreme Court.

In my opinion, the Justices have some reason to be upset, although I don't think that has any bearing whatsoever on whether they'll accept jurisdiction (personally I think they will.) I mean, the President has just basically forced this case upon them because he wants to hear them say they agree with him. That's irregular, and (yes) unprecedented. The Supreme Court typically would prefer not to have to wade into these things, and this is a good kind of wariness. Still, it doesn't seem to me as though they'll avoid ruling here.

(But, as showbiz_liz says, none of us knows what they're going to do yet.)
posted by koeselitz at 9:50 AM on March 27, 2013 [1 favorite]


317, there's another 40ish minutes left. I've been following this liveblog.

From that WSJ liveblog:
""Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all."

"Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government's actions were "unprecedented." To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is "has never been done before," he said."

"Justice Anthony Kennedy cited the controversial and "questionable" practice of presidential signing statements as an example. He said if the president doesn't think a law is constitutional then he shouldn't sign it. And said the same principle perhaps applied in this case-- meaning if the president believes the law is unconstitutional, he shouldn't enforce it."

"Lawyer Paul Clement, representing the House, opened the main portion of the morning’s arguments that examined DOMA’s constitutionality. He faced several tough questions from the court’s liberal wing—and from moderate conservative Justice Anthony Kennedy—that asked why the federal government had the right to define marriage, given that the issue was one traditionally reserved for the states."

"Mr. Clement said the issue of gay marriage implicates profound and deeply held views, but he said the key legal question in the case was a narrow one: Does the federal government have the flexibility to define marriage?"
posted by ericb at 9:53 AM on March 27, 2013 [1 favorite]


I still think the standing issue in Windsor is a red herring.
posted by roomthreeseventeen at 9:55 AM on March 27, 2013


SCOTUSblog: Court 80% likely to strike down DOMA.
posted by ericb at 9:59 AM on March 27, 2013


roomthreeseventeen: “I still think the standing issue in Windsor is a red herring.”

I think I agree (although I'm not sure exactly what you mean, I guess). I think the Obama administration acted very oddly with regard to DOMA, considering the fact that the executive has every right to refuse to enforce a law if it views that law as unconstitutional. I'm not sure why they chose to continue enforcing the law anyway, although of course it probably has something to do with the politics of the situation. However, although the administration's way of proceeding here was highly irregular, that doesn't really impact the standing here; the Supreme Court's jurisdiction is still pretty solid, I think. We're talking about a federal law, after all.
posted by koeselitz at 10:02 AM on March 27, 2013


koeselitz, I just mean I think at least in Windsor, SCOTUS is going to give a ruling based on the merits and not on standing.
posted by roomthreeseventeen at 10:06 AM on March 27, 2013 [1 favorite]


What about the part of the DOMA that lets states not recognize a same-sex marriage from another state. Doesn't that part need to be ruled unconstitutional by the Supreme Court in order to make state recognize same sex marriage in another state? If Obama had stopped defending DOMA and just ignored it, would that have forced the all states to recognize gay marriages not performed in their state?
posted by nooneyouknow at 10:09 AM on March 27, 2013


It's rare that the phrase "states' rights'" makes me giggle.

All you Yankees think we fought the Civil War over slavery. Well, that couldn't be further from the truth; we were actually fighting for gay marriage.


So when my cousin from rural Virginia used to drive around with a Confederate Flag on the back seat of his car and say things like "if the South woulda won," he was trying to tell the world that accepts and affirms the dignity and equality of GLBT relationships?
posted by Area Man at 10:13 AM on March 27, 2013


Is there any substantive commentary on the Windsor arguments yet, beyond the one tweet from SCOTUSblog?
posted by PMdixon at 10:17 AM on March 27, 2013


Is there any substantive commentary on the Windsor arguments yet ...

Like yesterday, I recommend The Guardian's liveblog.
posted by ericb at 10:27 AM on March 27, 2013


If Obama had stopped defending DOMA and just ignored it, would that have forced the all states to recognize gay marriages not performed in their state?

I don't believe so, because that part of DOMA doesn't require any action from the Executive Branch. It merely grants States a power that they would not otherwise have.
posted by DevilsAdvocate at 10:28 AM on March 27, 2013


SCOTUSblog has their analysis up - haven't read it yet.
posted by Lemurrhea at 10:30 AM on March 27, 2013


So when my cousin from rural Virginia used to drive around with a Confederate Flag on the back seat of his car and say things like "if the South woulda won," he was trying to tell the world that accepts and affirms the dignity and equality of GLBT relationships?

God forbid we become a cesspool of image macros like Reddit is, but Area Man, you've just described Almost Politically Correct Redneck.
posted by benito.strauss at 10:38 AM on March 27, 2013 [2 favorites]


i've just had a cryfest, thinking of those who aren't with us to see these amazing changes, both personally and generally. and i have to say that the almost politically correct redneck made me laugh so hard i sputtered. thanks for that.
posted by nadawi at 10:44 AM on March 27, 2013 [2 favorites]


DOMA Plaintiff Edie Windsor Speaks Following Supreme Court Arguments [03:35].

Her legal team answers questions [06:39].
posted by ericb at 10:49 AM on March 27, 2013


Transcript of today's proceedings

Audio
posted by roomthreeseventeen at 11:05 AM on March 27, 2013


From the SCOTUSblog analysis of the DOMA oral argument:
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law. [...] Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution. There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that [...] the law violates the Fifth Amendment guarantee of legal equality in general.
So if you believe their analysis, it seems likely to be at least 5-4 against DOMA on states' rights grounds, and possibly 6-3 if one of the more moderate conservative Justices decides to read the writing on the wall and join the winning team.

What will be interesting is to see whether any of the liberal Justices decide to come out with a concurring opinion that discusses the Fifth Amendment issue, even if the majority opinion is based only on the limits of federal powers.
posted by Kadin2048 at 11:22 AM on March 27, 2013


If DOMA is struck down on states' rights grounds, couldn't you just use full faith and credit to force all states to recognize same-sex marriages?
posted by one more dead town's last parade at 11:31 AM on March 27, 2013


It's a matter of contracts. Nothing more.

This, the idea that marriage is nothing but a contract between two people and that the rest of the community has no stake in people's marriages (beyond the enforcement of contracts generally), is precisely the "redefinition of marriage" that conservatives fret about when they claim that same-sex marriage threatens traditional marriage. It's hard to believe that making this conception of marriage the law wouldn't have big effects on the cultural conception of marriage.

What conservatives don't seem to realize is that ship sailed a long time ago. That conception of marriage is already firmly rooted in our culture (conservative Christians very much included) and legalizing same-sex marriage isn't likely to make a noticeable difference.
posted by straight at 11:38 AM on March 27, 2013


If DOMA is struck down on states' rights grounds, couldn't you just use full faith and credit to force all states to recognize same-sex marriages?

I'm not sure the entire thing would stand or fall. The main issue at hand in this case is Section 3, which defines marriage as opposite-sex for the purposes of federal law (and thus, if it stands, Windsor is ineligible for the spousal exemption on the federal estate tax).

However, it's Section 2 which says that one state need not recognize a legal same-sex marriage from another state. I haven't read all the arguments and briefings, but I'm not sure how much Section 2 has been challenged, nor whether the Supreme Court is likely to strike down a section that isn't directly at issue in the case at hand.

I'm no lawyer, but it seems to me that if they overrule DOMA on equal protection grounds, the whole thing might fall, but if they rule based on states' rights, they might well invalidate Section 3 only, while leaving Section 2 intact.
posted by DevilsAdvocate at 11:42 AM on March 27, 2013


Soundcloud version of audio from today's proceedings.
posted by ericb at 11:57 AM on March 27, 2013


I haven't read anything that would suggest that section 2 of DOMA is in danger through this case, and that it would still be in effect should section 3 go down. That said, on the face of it section 2 would be very vulnerable to a challenge based on the full faith and credit clause of the Constitution. It's just that these particular cases haven't brought these issues up.

Here is a question for any legal observers on the blue: Has there been any litigation at the lower levels about section 2 of DOMA? What were the outcome of those cases? Or have LGBT groups been skittish about bringing those cases to trial for fear of a bad ruling?
posted by Weebot at 12:14 PM on March 27, 2013 [2 favorites]


That said, on the face of it section 2 would be very vulnerable to a challenge based on the full faith and credit clause of the Constitution.

I'm not sure it would.
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. [emph. mine]
I think Section 2 is unconstitutional, but only because it violates the equal protection clause, not the full faith and credit clause.
posted by DevilsAdvocate at 12:45 PM on March 27, 2013


I dunno about that, DevilsAdvocate. So marriage is a public record of a state. Congress can regulate how to prove a marriage, that's the "manner in which ... shall be proved." So maybe just the marriage cert is enough, or maybe marriage cert + an affidavit from the Office of Mumble-Jumble by the original state, or whatever. Since Congress is regulating it, I understand that it's meant to be the same across the various States (which makes sense).

Congress can also regulate the effect of the proof. Marriage is not a great example here - for something like a court judgement, maybe you can go from a judgement in State A to enforcement by the normal remedies in State B, or maybe you have to go to court in State B to get an enforceable-in-B judgement. Those types of things.

But given that Congress is restricted to "general laws", I'm not sure they can give the power to State B to decide which of the acts/judgements/etc they'll enforce.

Conceptually, those types of situations exist. Extradition usually runs on a "double criminality" basis, where Country B won't extradite to Country A unless it's criminal in both countries. But that's the exact opposite of "full faith and credit."
And I could see a general law saying "a registered civil union need count for nothing", or more likely "a registered civil union only counts for what State B normally counts as their civil union law, if it exists."

But how do you draft a law that is general, allow for full faith & credit, but also allows State B to fail to recognize a subset of public acts that State A doesn't treat as a subset? If we can do that, we can have Congress draft a law that says "State B need not take into consideration a law passed in State A if the substance of that law does not exist in State B". Which is crazytown.
posted by Lemurrhea at 1:06 PM on March 27, 2013


11 key moments from the argument over the Defense of Marriage Act.
posted by ericb at 1:06 PM on March 27, 2013


MSNBC's Luke Russert Hammers Tony Perkins on DOMA: 'So You Equate Homosexuality with Polygamy?' (w/ video).
“What do you fear the most about a couple being together – a same-sex couple being together over 60 years like we saw in the Windsor case – what do you fear so much about them getting the same federal benefits for their marriage as an opposite-sex couple would?” Russert asked.

“I don’t fear anything,” Perkins replied.

“Then why do you oppose,” Russert interjected.

“If love becomes a definition of what the boundaries of marriage are, how do we define that going forward?” Perkins asked. He asked, hypothetically, how America would prohibit an individual with multiple spouses from immigrating to the country given that definition of marriage.

“So you equate homosexuality with polygamy?” Russert asked.

“No,” Perkins replied.

“Well, you just said that, sir,” Russert fired back.
posted by ericb at 1:13 PM on March 27, 2013 [7 favorites]


Anyone read anything about the level of scrutiny to review these laws under? While not the sexiest topic, it's pretty important whether future laws affecting LGBT groups face strict scrutiny or rational basis review in future cases. It seems like SCOTUS is either downplaying that, or avoiding the issue altogether.
posted by Weebot at 1:29 PM on March 27, 2013


I think part of the argument on Section 2 is that there is some tradition of states not recognizing marriages from other states that conflict with their public policy, and the Section 2 is just, therefore, codifying an existing bit of common law (I haven't looked at this issue in years, so I can't remember how strong the actual case law is). That doesn't resolve the Equal Protection issues, but could strengthen the Full Faith and Credit Clause part of the argument for Section 2.
posted by Area Man at 1:37 PM on March 27, 2013 [1 favorite]


“So you equate homosexuality with polygamy?” Russert asked.

“No,” Perkins replied.



When a Family Research Council asshole like Tony Perkins feels like he must publicly do anything other than equating homosexuality other than "EW GROSS" the battle is much more lost for them than even I realized.

(Or maybe he just is pro-polygamy and I'm misunderstanding the quote.)
posted by MCMikeNamara at 1:44 PM on March 27, 2013 [2 favorites]


This comment remarkably misses the point. The point of "all the other stuff" is to encourage stable two-parent households. Everything you just mentioned makes marriage very expensive to the government. The government loses tens of billions of dollars on marriage in terms of tax exemptions, Social Security survivor's benefits, and the like. In effect, the government subsidizes marriage. The policy of the subsidy is the state's propagation of itself.

Bollocks. This is right-wing propaganda and doesn't square with the facts. If you pay attention, "all the other stuff" is not to encourage two-parent households. It is to encourage two-person households. That's where the government "subsidizes marriage". Not "subsidizes marriage only for parents". All marriage, with or without children.

How do we know this? Because there are tax advantages unique to being a parent who takes care of a child regardless of whether the parent is married or not.

If the marriage has no parents in it (not a two-parent marriage in your definition), that marriage still gets "all the other stuff". It is not a requirement to have children, or even be capable of having children, or have any plans to have children. If the government wanted to promote children - whether in marriage or not - it would do so... and it does so - by having special tax credits which are not available to "stable two-person households marriages". Marriage is promoted by the government completely separately from having children.

There are many studies showing that there are social advantages to people in a marriage regardless of having children or not - and since society benefits by that, the government promotes it. It is however propaganda - and simply wrong - to try to portray the government as only promoting marriage for parents or prospective parents; the government has an interest in promoting marriage, period. That's where "all the other stuff" enters.
posted by VikingSword at 1:44 PM on March 27, 2013 [7 favorites]


DOMA Plaintiff Edie Windsor Speaks Following Supreme Court Arguments [03:35].

Oh, this video! I know it shouldn't matter, but having Edie Windsor as the plaintiff for this case was a stroke of genius. She could not possibly be more adorably sympathetic.
posted by lalex at 1:53 PM on March 27, 2013


Related:
CBS News: Study: Gay Marriage Good For Economy.

Yahoo! Finance: How Gay Marriage Impacts the Economy.

Washington Post: Why Fiscal Conservatives Should Love Gay Marriage.

Huffington Post/YourTango: Gay Marriage Costs: The Economic Impact Of A Ban On Marriage Equality.
posted by ericb at 2:04 PM on March 27, 2013


But given that Congress is restricted to "general laws", I'm not sure they can give the power to State B to decide which of the acts/judgements/etc they'll enforce.

You may be right. Cornell's annotations on Article IV Section 1 seem to all focus on the first sentence of the clause, with nothing on how broad Congress's power under the second sentence is. So unless there's case law interpreting that which isn't mentioned in Cornell's annotations (and I welcome pointers if there is), we may be in uncharted waters there.

we can have Congress draft a law that says "State B need not take into consideration a law passed in State A if the substance of that law does not exist in State B". Which is crazytown.

Yes, such a law would be "crazytown." But that doesn't necessarily make it unconstitutional. Not all bad laws are unconstitutional; sometimes the only remedy for a bad law is the legislative one.
posted by DevilsAdvocate at 2:42 PM on March 27, 2013


Don't mind me, just commenting so this will show up in recent activity while you heavy lifters keep me up to date on all this.
posted by DynamiteToast at 2:52 PM on March 27, 2013 [1 favorite]


Don't mind me, just commenting so this will show up in recent activity while you heavy lifters keep me up to date on all this.

It'll never work.

oop!
posted by grubi at 3:03 PM on March 27, 2013


Does anyone here know what the deal is with Roberts criticizing the President? To me it sounds like Roberts is complaining about being forced to do his job, i.e. decide the constitutionality of a law, but I don't know much law and I don't like Roberts in the first place, so I have like zero insight here.
posted by benito.strauss at 3:07 PM on March 27, 2013


Anyone read anything about the level of scrutiny to review these laws under? While not the sexiest topic, it's pretty important whether future laws affecting LGBT groups face strict scrutiny or rational basis review in future cases. It seems like SCOTUS is either downplaying that, or avoiding the issue altogether.

The administration is pushing for "heightened" scrutiny in both the Prop 8 and DOMA cases, but the conservative justices, Roberts and Kennedy in particular, refuse to get drawn into it because they're bigoted asshats they don't want to apply that to gays "just yet." For example:
[I]t’s hard to miss the downside to today’s events. Specifically, Justice Anthony Kennedy was maddeningly opaque — and even uninterested — when it came to the “heightened scrutiny” question. This suggests the possibility that even if DOMA is struck down, the Court may not clarify its position on that question, which in turn will not give gay advocates the additional weapon they had hoped for against state laws banning gay marriage.

Again and again, Obama Solicitor General Donald Verrilli repeated the administration’s argument against DOMA: Laws that classify people based on sexual orientation must be subjected to heightened scrutiny — i.e. they need to have an extremely compelling policy rationale — and when they are, it is revealed that they violated the equal protection clause of the Constitution. But Kennedy didn’t seem to engage this argument. Instead, as SCOTUSblog’s Lyle Denniston puts it, he was much more focused on the idea that DOMA “intruded too deeply into the power of the states to regulate marriage.”

That could very well mean DOMA will be struck down — which is great — but it doesn’t settle how SCOTUS views the question of whether sexual orientation classifications merit heightened scrutiny and hence violate the equal protection clause. As Denniston notes:
It was not apparent that Verrilli was making much headway with his argument that any law that treats gays and lesbians less favorably, because of their sexual identity, should have to satisfy a stricter constitutional test.

The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on homosexuality. The indications on Wednesday were that the DOMA case might be decided without supplying such a standard, since a decision based on interference with states’ prerogatives would not require the creation of a test based on equality principles.
And that would be unfortunate. If the Court rules on narrow procedural grounds on Prop 8 (which Verrilli also challenged on “heightened scrutiny” grounds), and if it strikes down DOMA in the fashion Denniston suggests, the Court may end up hearing these two cases without spelling out its constitutional standards for evaluating laws that discriminate based on sexual orientation.

Advocates are hoping the Court would do this, because if it does, it seems highly unlikely that other state laws banning gay marriage would not clear those standards, making it more likely that they would ultimately get struck down as unconstitutional. If the court doesn’t do this, advocates won’t gain the additional weapon they’d hoped would help them topple those laws.
posted by zombieflanders at 3:13 PM on March 27, 2013 [2 favorites]


Given Kennedy's opinion in Lawrence v Texas, in which he wrote that criminalizing sodomy failed even the rational basis test, I'd like to think it's possible that he could go along with a majority that strikes down Prop 8 and/or DOMA on equal protection grounds without including gay people as a group entitled to heightened scrutiny.
posted by MoonOrb at 3:45 PM on March 27, 2013


ericb: "The facts of the case: Ocean Grove Camp Meeting Association, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the New Jersey Division on Civil Rights. "

To be perfectly fair, Ocean Grove is one hell of a weird case. The church literally owns the entire town -- houses, beaches, roads, and all. It's almost always a red herring in these discussions when it's brought up by either side -- the religious see it as a church being forced to wed a gay couple, while the proponents of marriage equality use it as an example for how religious exemptions can be used as a backdoor toward discrimination. It's a convenient reducto ad absurdem for gay marriage's proponents and opponents.

It's also not the first time that the government's forced the Methodists to relax their control over Ocean Grive. The state has to constantly remind the association that it's not allowed to actually operate as a city government, and the Camp Meeting Association has pretty much been in one legal battle or another with the state throughout the entire (and quite considerable) length of its existence.
posted by schmod at 8:31 PM on March 27, 2013


Does anyone here know what the deal is with Roberts criticizing the President? To me it sounds like Roberts is complaining about being forced to do his job, i.e. decide the constitutionality of a law, but I don't know much law and I don't like Roberts in the first place, so I have like zero insight here.


Never attribute to deep legal thinking that which is adequately explained by Roberts being kind of a dick.
posted by MCMikeNamara at 10:37 PM on March 27, 2013 [4 favorites]


It could get worse:
The four liberals on the ideological left of the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) may vote to strike down DOMA as unconstitutional discrimination, but without Kennedy there is no majority for that view. Kennedy's vote would be the fifth to strike it down, but on the deeply conservative and troubling grounds of the lack of federal power.

Such an outcome would be a victory, I suppose, but it would come at a very high cost. There would be no agreement as to the whether discrimination on the basis of sexual orientation is constitutionally problematic, so other discriminatory statutes—for example those banning adoption by gay couples—would survive. Moreover, a Kennedy opinion offering a rationale that prioritized state rights would mean that the federal government could not, say, adopt a statute protecting same-sex couples. (A hypothetical that Chief Justice Roberts kept hammering.) Nope, Kennedy would say, that's up to the states. And of course, Kennedy's fixation on states' rights in the DOMA case would imply that he is likely to uphold state laws that limit marriage to between men and women. Like Prop 8.

So DOMA could be struck down, with the price being a survival of Prop 8. Or, the Court could avoid ruling on the merits of Prop 8 entirely, if it decides that the procedural issues are sufficiently problematic that it should simply kick the can down the road one way or the other. If that happens the cases would end like the argument—not with a bang or a champagne cork, but with a whimper.
posted by zombieflanders at 5:57 AM on March 28, 2013


I'm not ready to give up on Kennedy yet. He came out the right way Romer v. Evans and Lawrence v. Texas. He doesn't like the animus against gay people and he believes that people should be able to live their own lives and make their own sexual and romantic choices. For an old, conservative guy appointed by Ronald Reagan, I find that remarkable. He also seemed concerned in the Prop 8 case about the kids of gay couples, which was nice to hear.
posted by Area Man at 6:28 AM on March 28, 2013


Why Waiting on the States Could Create a Messy Future for Same-Sex Marriage.
posted by ericb at 7:02 AM on March 28, 2013


I'm not ready to give up on Kennedy yet.

I am. He's all but declared that he's ready to overturn the VRA, affirmative action, and Roe, all of which have the other 4 conservatives solidly behind him. And on that last one, I can only hope that PP and others don't fall for the obvious trap that North Dakota et al are preparing for them. Half-assing on SSM just his cover to fully fucking over the poor, minorities, and women (and combinations thereof).
posted by zombieflanders at 7:09 AM on March 28, 2013


Time Magazine Cover: 'Gay Marriage Already Won' (PHOTO).
posted by ericb at 8:33 AM on March 28, 2013


The backstory to the Time Magazine cover photo shoot.
posted by ericb at 8:41 AM on March 28, 2013


How the War on Gay Marriage Turned Into a War on Adoption
posted by homunculus at 9:51 AM on March 28, 2013


The Defense Of Marriage Act Was Always Discrimination With A States-Rights Mask. Contains quotes from the Reps who sponsored and voted for it.
posted by the man of twists and turns at 10:08 AM on March 28, 2013


the man of twists and turns: The Defense Of Marriage Act Was Always Discrimination With A States-Rights Mask. Contains quotes from the Reps who sponsored and voted for it.
This is not a comment on your post, but on the title of the article: Duh.

I really don't think there's a non-trivial number of people on either side of the debate that don't know this in their hearts, although some may have successfully bullshitted themselves into believing it has something to do with anything other than "gays are icky".
posted by IAmBroom at 10:40 AM on March 28, 2013 [1 favorite]


Ask An Anthropologist about Marriage:

"The age-old definition of marriage".To an anthropologist, that sounds remarkably quaint. Whose age-old definition? Globally, the cultural tradition being argued is one among many, and as the American Anthropological Association said in 2004 in a statement inspired by a call for a constitutional amendment to enshrine that definition,
The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies.
posted by rtha at 11:02 AM on March 28, 2013 [2 favorites]


Also, I am even more in love with Elena Kagan than ever.

It's amusing to go back and read Metafilter's first sustained thread on Kagan now. Lots of wailing and gnashing of teeth over Obama caving to the Republicans and "pushing the court to the right."
posted by yoink at 11:09 AM on March 28, 2013 [1 favorite]


"The age-old definition of marriage" would have me unable to hold property in my own name or travel by myself. The "age-old" definition of marriage rendered it legally impossible for a woman to charge her husband with rape- she did not have the right to withhold consent.

Marriage equality doesn't change marriage. Society already changed marriage. Thank goodness.
posted by ambrosia at 11:50 AM on March 28, 2013 [6 favorites]


Salon’s gay marriage courage-meter -- "With more politicians endorsing LGBT marriage each day, here's who's shown guts -- and who just followed the flock."
posted by ericb at 2:35 PM on March 28, 2013 [1 favorite]


Rush Limbaugh:
“This issue is lost,” he said. “It is now inevitable” that gay marriage will come to pass, regardless of how the Supreme Court rules on two separate cases related to the issue.

“We lost the issue when we started allowing the word ‘marriage’ to be bastardized and redefined,” Limbaugh explained, pointing the finger at “the left,” whom he believes has attempted to co-opt the word “marriage” to go beyond its definition.

“Once you decide to modify the word marriage then the other side has won,” he lamented. “The best thing that marriage had going for it was basically what they teach you the first day in law school: If you hang on a horse the sign that says ‘Cow,’ it does not make it a cow.”
posted by ericb at 2:37 PM on March 28, 2013


Bloomberg: On Gay Marriage, Moderation Could Be Disastrous.
posted by ericb at 2:39 PM on March 28, 2013


Rush Limbaugh, who has been married four times, laments that the definition of marriage has changed?!
posted by KathrynT at 2:42 PM on March 28, 2013 [2 favorites]


Well, if he really thinks that the best thing marriage has going for it is "cow" signs on horses, can you blame him for not really being able to settle into one?
posted by koeselitz at 2:59 PM on March 28, 2013 [1 favorite]


The New Yorker: Painting the Internet Pink.
posted by ericb at 3:05 PM on March 28, 2013


Variants of HRC's pink equal logo.
posted by ericb at 3:07 PM on March 28, 2013


And now I have to change my Facebook picture again.
posted by Holy Zarquon's Singing Fish at 3:11 PM on March 28, 2013 [1 favorite]


Why the Facebook Equality Avatars Do Matter.
posted by ericb at 3:21 PM on March 28, 2013


Success on Political Front Can Be Setback in Gay Rights
posted by Blazecock Pileon at 6:59 PM on March 28, 2013


Variants of HRC's pink equal logo.

Having a friend who self-identifies as a Peppermint Patty lesbian, I really like this one, but I'm kind of disappointed there isn't an Akbar and Jeff one.
posted by benito.strauss at 7:12 PM on March 28, 2013


Cow sign on a horse? why would that be discussed on the first day of law school? If anything, I've learned that the definitions section of a contract or statute can have surprising effects.
posted by Area Man at 3:36 AM on March 29, 2013


Tangentially related: Edith Windsor And Thea Spyer's Great American Love Story.
posted by MartinWisse at 4:02 AM on March 29, 2013 [1 favorite]


Willie Nelson unveils two new version of the equals symbol.
posted by octothorpe at 6:30 AM on March 29, 2013 [1 favorite]


So glad someone posted the Willie Nelson interview because I wanted to quote my favorite part last night and forgot:

TM: You've been a supporter of LBGT issues over the years. Outspoken even.

WN: I never had a problem with any of it. I've known straight and gay people all my life. I can't tell the difference. People are people where I came from.

TM: But where you came from was small town Texas in the thirties and forties. Was Abbott more forward-thinking than we give it credit for?

WN: We were a lot like New York City. [laughs] With shorter buildings.



As a Texas Monthly commenter says, Willie Nelson is a national treasure.
posted by MCMikeNamara at 7:48 AM on March 29, 2013 [1 favorite]


Scientific American: Will changing your Facebook profile picture do anything for marriage equality?
Although many people have said that it’s been personally meaningful to sign onto Facebook and see a screen full of red avatars, many have criticized the trend for being a silly way of “showing support” without actually accomplishing anything significant. However, although the SCOTUS justices might not be checking Facebook to tally up the red avatars before rendering a decision, a demonstration of solidarity like this one really could end up making an impact.
posted by ericb at 9:14 AM on March 29, 2013 [1 favorite]


I have to say, it isn't a legal argument at all, but the fact that Chief Justice Roberts' lesbian cousin attended the hearings gives me reason to be more hopeful than I would otherwise be about his vote.
posted by jph at 11:02 AM on March 29, 2013


Rick Santorum Says 'Will & Grace' to Blame for Gay Marriage.

Ah, memories of Dan Quayle on Murphy Brown.
posted by ericb at 11:39 AM on March 29, 2013


And then we have GOP Ben Carson's comments on Tuesday:
"Well, my thoughts are that marriage is between a man and a woman. It's a well-established, fundamental pillar of society and no group, be they gays, be they NAMBLA, be they people who believe in bestiality. It doesn't matter what they are. They don't get to change the definition. So he, it's not something that is against gays, it's against anybody who wants to come along and change the fundamental definitions of pillars of society. It has significant ramifications."
And, Carson this afternoon:
"I think in terms of what was said on Sean Hannity’s show, that was taken completely out of context and completely misunderstood in terms of what I was trying to say. As a Christian, I have a duty to love all people and that includes people who have other sexual orientations, and I certainly do, and never had any intention of offending anyone… If anyone was offended, I apologize to you.

Marriage is a very sacred thing and we need to maintain it as a sacred thing. When I say we don’t want to change it or degrade it by calling everything marriage, that’s not aimed at any particular group. But the fact of the matter is, the Bible and God have set very specific standards. It’s very clear what’s being said. God doesn’t change, man changes. Our duty is to allow for that change and to still love them and in terms of what happens with them, that’s a decision that’s up to God, that’s not our decision.”
Ye' old 'out of context,' 'completely misunderstood, passive voice (''what was said') bullshit.

Hey, GOP: how's that re-branding and 'widening the tent stuff' going for 'ya? Withe friend like this.
posted by ericb at 12:16 PM on March 29, 2013 [2 favorites]


Better there than with the congressman who talked about the good ol' days when his father hired "wetbacks" to work in the fields, at least.
posted by Holy Zarquon's Singing Fish at 12:21 PM on March 29, 2013 [1 favorite]


Yeah, Don Young (R. - AK) yesterday:
“My father had a ranch; we used to have 50-60 wetbacks to pick tomatoes. It takes two people to pick the same tomatoes now. It’s all done by machine.”
Today he released a (non-) apology.
“During a sit down interview with Ketchikan Public Radio this week, I used a term that was commonly used during my days growing up on a farm in Central California. I know that this term is not used in the same way nowadays and I meant no disrespect.

Migrant workers play an important role in America’s workforce, and earlier in the said interview, I discussed the compassion and understanding I have for these workers and the hurdles they face in obtaining citizenship.”
posted by ericb at 12:29 PM on March 29, 2013


Those two clowns's comments are equally horrible.
posted by ericb at 12:30 PM on March 29, 2013


Marriage is a very sacred thing and we need to maintain it as a sacred thing.

Then you should have complained when the government started issuing marriage licenses. That ship sailed a long, long time ago.
posted by benito.strauss at 12:35 PM on March 29, 2013 [1 favorite]


Who Opted to Take Gay Marriage Case? Ask Justice Scalia

As it turns out, it would seem the conservative members of the court, making a calculation that their chances of winning would not improve with time, were behind the decision to take up the volatile subject.

The aha moment came on Tuesday.

After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand.

“It’s too late for that now, isn’t it?” he said, a note of glee in his voice.

“We have crossed that river,” he said.

That was a signal that it was a conservative grant.


Christ, what an asshole. If he were a mefite how much you wanna bet he'd be getting "make an effort" notes from mods all over the place? He's a smart guy who thinks much too highly of his intellectual prowess.
posted by rtha at 12:40 PM on March 29, 2013 [3 favorites]


That is a really thin justification to assert anything on.
posted by Holy Zarquon's Singing Fish at 12:42 PM on March 29, 2013 [1 favorite]


I think the idea of "Metafilter's own Antonin Scalia" just made my brain burst. Although I would love to come up with his site handle...
posted by blurker at 2:58 PM on March 29, 2013


Rough Justice?

Scaaliyah?

Robe One Out?

Originalest?
posted by klangklangston at 3:03 PM on March 29, 2013 [1 favorite]


Sorry, that really didn't add anything to what is a serious discussion, which I have been following closely. I didn't mean to be flippant, this is all just so big, I guess I'm needing to lighten my own mood.

For what it's worth, I couldn't agree with grubi's assessment any more if I tried. My (childfree) marriage should be exactly the same as any same sex union in the eyes of the federal government. It sickens me that there is even an argument about this.
posted by blurker at 3:03 PM on March 29, 2013


No, sometimes flippancy is good. Whistling past the graveyard and all that.
posted by rtha at 3:07 PM on March 29, 2013


Good, because "Robe One Out" had me laughing until I cried.
posted by blurker at 3:09 PM on March 29, 2013 [5 favorites]


And then we have GOP Ben Carson's comments on Tuesday:

Wow, and he's supposed to be the great new rising star of the GOP?
posted by octothorpe at 3:30 PM on March 29, 2013


Scalia’s gay adoption claim: Even wronger than I thought
posted by peeedro at 6:02 PM on March 29, 2013


Remember the Mojave Memorial Cross case (mefi)? Where Tony said that "The cross is the most common symbol of the resting place of the dead,"? Wrong. So wrong.

A question that's been percolating through my brain is why the argument that the Feds should default to not recognizing same-sex marriage even though some states grant it is a good argument. Those who argue that marriage is the purview of states and not the Feds seem to argue this, but it doesn't make sense to me. If State A says that it's okay to get married when you're 15 if you have parental permission, and State B says you have to wait until you're 18, the Feds don't care - they still allow the 15-year-olds to file as married, they're still eligible for Social Security survivor benefits, etc. I understand that State B would still recognize State A's marriages as being legit, so maybe that makes a difference?

(Poorly worded question, I know. I'm still trying to work out what it is exactly I'm asking, and how to word it so it makes sense! I might end up posting this to NCLR's facebook wall and/or askme.)
posted by rtha at 9:09 AM on March 30, 2013


The states-rights argument is that the feds should treat anyone as married who is considered married under the laws of the state where they live, which is how it works for opposite-sex marriage already. It's not a matter of a "default" stance so much as just saying to the states, "whatever you say goes, we're not going to have our own rule." The difference between gay couples and the 15-year-olds is that most states that forbid marriage by minors don't have a clause in the law saying "...and any teen marriages performed in other states are not valid in ours, because screw you guys."
posted by Holy Zarquon's Singing Fish at 9:35 AM on March 30, 2013


Facebook Data Shows Picture of Same-Sex Marriage Support.

Data analysis by Eytan Bakshy, a researcher on the Facebook Data Science Team: Showing Support for Marriage Equality on Facebook.
posted by ericb at 9:46 AM on March 30, 2013


i wish he had come up with a different methodology because, well, as he says :
there's no way to know whether all these profile picture updates were in support of gay marriage, since users could just as easily be changing their picture to indicate opposition to gay marriage
his hand waving of that afterwards isn't really convincing. i'm a sample size of one, but what i saw was a wave of the HRC logos, then a wave of similar logos of support, and then a wave of mormon family posting either pre-made images or changing their icon to a photo of their family (a suggestion i saw to show your support for traditional marriage without being political). i would agree that the for equality logo swaps were in greater number, but the anti equality reaction wasn't peanuts.
posted by nadawi at 10:41 AM on March 30, 2013


I actually had someone email and ask what the deal was with the profile picture, because I was one of only two people who had changed their profile photos, and she's been distracted by other stuff on not online much and couldn't figure out what was going on. So there were also people that were just oblivious to the entire thing.
posted by ambrosia at 10:46 AM on March 30, 2013


Marriage Equality Sign Stirs Storm in a Harlem Coffee Shop.
posted by ericb at 10:47 AM on March 30, 2013


Or: Lunatic oppressed by other people's reasonableness.
posted by klangklangston at 11:38 AM on March 30, 2013 [1 favorite]


It's not a matter of a "default" stance so much as just saying to the states, "whatever you say goes, we're not going to have our own rule."

Yeah, but it seems to be that this falls apart pretty quick, since in fact the Feds use the "Nope, you're not married" rule even if the state the couple resides in says "Yep, you're married." In effect, the Feds do seem to make their own rule in those cases. A gay couple who married and reside in Massachusetts are forced to live (federally speaking) by the laws of states that don't recognize their marriage, and I don't understand how that works or why that's okay. The 15-year-olds who are married and live in a state that's fine with them being married don't have their Federal benefits denied because some other state wouldn't allow them to marry if they lived in that state.

(I'm not arguing with you at all, I'm just trying to understand the argument.)
posted by rtha at 11:39 AM on March 30, 2013


rtha, this is related to the idea of Full Faith and Credit: generally, the Constitution requires that states give "full faith and credit" to the laws of other states. Under ordinary circumstances this would work as you described. But this can be altered by Congress, which is one of the things that DOMA has done.

If DOMA is struck down completely, then a state like, say, Pennsylvania, would have to give full faith and credit to the marriage of a same sex couple who was legally married in New York.

I don't know yet whether all of DOMA or just part of it will be invalidated (I'm assuming at least some of it will be).
posted by MoonOrb at 12:02 PM on March 30, 2013


Two things: First, the portion of DOMA that allows states to refuse recognition to gay couples married in other states is not being challenged (since that portion of the law did not actually affect Winsor), and the Court will almost certainly not strike it down when it's not specifically at issue in the case.

Second, the states-rights argument is against that state of affairs. It is an argument for striking down DOMA section 3, which is the section that denies federal recognition to same-sex, married couples.
posted by Holy Zarquon's Singing Fish at 12:10 PM on March 30, 2013 [1 favorite]


Thanks, y'all. It's becoming clearer to me. I knew it had something to do with the Full Faith and Credit clause, but there's a reason I didn't go to law school (a year working in a law office as an admin/proofreader made me realize that legal writing makes my eyes glaze over and my brain shut down after two sentences).
posted by rtha at 12:19 PM on March 30, 2013


If DOMA is struck down completely, then a state like, say, Pennsylvania, would have to give full faith and credit to the marriage of a same sex couple who was legally married in New York.

Maybe, maybe not. FFAC doesn't mean that if one state grants you something, every state has to recognize it -- if it did, that would mean that physicians, attorneys, engineers, beauticians, etc licensed in any one state could automatically legally practice in every state, even in states where licensure is more stringent.

FFAC gives a lot more protection to judicial decisions than to civil law. This is why divorces, which are judicial decisions, have to be respected by other states no matter what their local policy is, while licenses, and marriages, do not.
posted by ROU_Xenophobe at 1:09 PM on March 30, 2013 [1 favorite]


Cardinal Dolan To Gay Couples: You’re Only ‘Entitled To Friendship’
posted by homunculus at 9:52 AM on March 31, 2013


Lady in Red: The Woman Behind the Red Equal Sign.
posted by ericb at 12:24 PM on March 31, 2013


The truth about the red equal sign.
posted by homunculus at 12:51 PM on March 31, 2013


Georgia GOP Chairwoman Sue Everhart Warns of a ‘Chuck & Larry’ Epidemic
posted by homunculus at 11:24 AM on April 1, 2013


John Roberts’ Ruse To Trap Kennedy On Marriage Equality
...Roberts tried to build consensus against striking down DOMA on federalism grounds, knowing that neither side arguing the case was seeking that middle path. He repeatedly — and successfully — asked the government’s anti-DOMA lawyer to affirm that it does not believe the 1996 law violates states rights
[...]
Lyle Denniston, a veteran Supreme Court analyst with the award-winning SCOTUSblog, described Roberts’ move as “a strategic effort to put Kennedy in a box.”

“I think the chief justice probably wants to sustain DOMA and he wants to force Kennedy into the posture of having to vote on the equal protection issue, knowing that Kennedy is not ready to strike down DOMA on equal protection,” Denniston told TPM. “So I think the conservatives and the chief in particular are trying force his hand because they think he is reachable on the merits.”
posted by zombieflanders at 6:40 AM on April 2, 2013


David Brooks calls SCOTUS appeal for marriage equality "a setback for the forces of maximum freedom." Rolling Stone's Matt Taibbi calls him "an asshole."
posted by ericb at 1:08 PM on April 2, 2013 [1 favorite]


Holy shit. Are we sure that's not Brooks playing an April Fool's joke? Because...wow.
posted by zombieflanders at 1:11 PM on April 2, 2013


I think the NYT could save Taibbi et al. a lot of time if they just subtitled Brooks' columns with "Articulate asshole smugly maunders."
posted by klangklangston at 1:17 PM on April 2, 2013 [2 favorites]


So is his wife going to write a rebuttal for next week? "Marriage is a restriction on personal freedom and anyone who campaigns to enter it is hurting their own cause, by A Married White Male" is basically the first half of an Onion Point-Counterpoint feature.
posted by Holy Zarquon's Singing Fish at 1:34 PM on April 2, 2013 [4 favorites]


It's as if Brooks thinks there is only one way to Do Marriage, and that everyone does it that way. I know he's not very smart, but can he really be that unworldly? It's also very odd, as Taibbi points out, that he seems to frame it as something that becomes mandatory if it is allowed.
posted by rtha at 1:46 PM on April 2, 2013


Everything David Brooks says sounds reasonable, so long as you don't think about it.

I know he's not very smart, but can he really be that unworldly?

He earns most of his pay by pimping for conservatives, so he will rip facts out of context and twist them very hard, if it will score points for his team.
posted by benito.strauss at 2:26 PM on April 2, 2013 [2 favorites]


The (un)equal sign: It’s time to break up with HRC
When you look at the pink and red Human Rights Campaign equal sign that many queers and their allies displayed on Facebook last week, you might see a simple testatment to marriage equality. You might see a promise to fight for equal rights. However, a recent incident forces us to ask this question: Members of the community might stand with HRC, but does HRC stand with them? Does the organization's commitment to equality include everyone?
posted by ericb at 2:51 PM on April 2, 2013 [1 favorite]


That was basically Brooks admitting that he's got nothing to say on the subject. There's no rational argument to be made against gay marriage and even the master bullshitter he is can't even come up with a column's worth of words to disguise that fact.
posted by octothorpe at 3:35 PM on April 2, 2013 [1 favorite]


Actually, what Brooks is attempting to do is to sell marriage for same sex couples to conservatives who might be wavering. I think that he's actually got relatively good intentions on that, it's just that he's a smug, maundering asshole, and that naturally pervades the column.
posted by klangklangston at 4:02 PM on April 2, 2013


And oh Christ, HRC. I am so glad that our org has been pro-trans the entire time, even when it cost us some votes. We haven't always been great at getting results for those principles, but at least most of the trans community doesn't hate us.
posted by klangklangston at 4:03 PM on April 2, 2013 [1 favorite]


Blue Crosses Fight Red Equal Signs As Gay Marriage Battle Takes New Turn On Facebook.
posted by ericb at 10:14 AM on April 3, 2013


Catholic Church Rips Off Marriage-Equality Facebook Campaign With Red Division Sign.
posted by ericb at 10:15 AM on April 3, 2013 [1 favorite]


jeremy irons doesn't have a strong feeling about marriage equality, but he's afraid it will open the door to dads marrying their sons. i'm not even sure "bless your heart" covers that sort of jackassery.
posted by nadawi at 4:38 PM on April 3, 2013 [3 favorites]


"Could a father not marry his son?" asked Irons.

...the star of "The Borgias".

THE MOTHERFUCKING BORGIAS. Ferchrissakes.
posted by grubi at 8:16 AM on April 4, 2013 [4 favorites]


nadawi: jeremy irons doesn't have a strong feeling about marriage equality, but he's afraid it will open the door to dads marrying their sons.
Dear Mr. Irons,

You are a brilliantly talented artist, but apparently completely unfamiliar with US law. It is illegal in the US (except, curiously, Rhode Island) for a parent to marry a child, regardless of this law.

Wait, strike that: why aren't you concerned that allowing straight marriage opens the door to mothers marrying their sons? Could it be because you're a fucktwit? I think so.

Yours very truly,
IAmBroom
posted by IAmBroom at 8:31 AM on April 4, 2013 [2 favorites]


nadawi: "jeremy irons doesn't have a strong feeling about marriage equality, but he's afraid it will open the door to dads marrying their sons. i'm not even sure "bless your heart" covers that sort of jackassery."

Well, that's disappointing.
posted by brundlefly at 9:42 AM on April 4, 2013


Wow. He's just... not very bright, is he?
posted by scody at 10:58 AM on April 4, 2013


So today's Fresh Air had a commentary about the definition of "gay marriage" by the linguist Geoff Nunberg. He manages to compare it to the evolving definition of the word "camera", and it's really very nice. (Transcript is up now, audio will be up tonight.)
posted by benito.strauss at 11:07 AM on April 4, 2013


CAMERA USED TO MEAN 'ROOM'
posted by grubi at 11:14 AM on April 4, 2013


sorry
posted by grubi at 11:14 AM on April 4, 2013


IT'S MORE SUBTLE THAN THAT.
posted by benito.strauss at 11:17 AM on April 4, 2013


no worries, mate.
posted by benito.strauss at 11:17 AM on April 4, 2013


WHAT IS THIS 'SUBTLE'? DOES IT VIBRATE?
posted by grubi at 11:20 AM on April 4, 2013


GET A CAMERA, YOU TWO.
posted by homunculus at 11:23 AM on April 4, 2013 [4 favorites]


AW, GO POST AN ARTICLE LINK.







I keed, I keed
posted by grubi at 11:26 AM on April 4, 2013 [1 favorite]


Trojan Horse
...[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture.

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th.
posted by zombieflanders at 1:52 PM on April 4, 2013 [1 favorite]


Bill Nelson reverses opposition to gay marriage
posted by zombieflanders at 2:39 PM on April 4, 2013


Final Four: With Wave Of Announcements, Near Democratic Unity On Gay Marriage
Two senators in conservative-leaning states came out for marriage equality on Friday morning. The announcements came within minutes of each other — first Sen. Heidi Heitkamp (D-ND) via press release then Sen. Joe Donnelly (D-IN) on his Facebook page
[...]
That leaves the Democratic caucus down to the Final Four when it comes to marriage equality. At this point, it’s possible — maybe even likely — that one of them will go down in history as the last Democratic senator ever to oppose gay marriage.

They could be tougher nuts to crack, however. Sens. Mary Landrieu (D-LA) and Mark Pryor (D-AR) are facing challenging re-election campaigns in two of the most socially conservative states in the nation. Sen. Joe Manchin (D-WV) has worked extremely hard to differentiate himself from national Democrats and might actually see some upside in being the lone holdout. Sen. Tim Johnson (D-SD) is retiring, which gives him more leeway to follow his heart in any direction he chooses.
posted by zombieflanders at 8:49 AM on April 5, 2013 [2 favorites]


Kitchen Sink Socialism - "We Don't Need Gay Marriage To Ruin One Man, One Woman, One Mortgage Relationships; Austerity Is Doing Just Fine"
But we 21st century socialists should be less interested in “intentional communities”- – those Fourierist bastions dotting the fringes of our Greenpoints and Petworths – and more interested in the unintentional ones.

A dozen ultraleft voluntarists arguing about shower schedules is a noise complaint; 120,000 downwardly mobile yuppies doing it out of necessity is a substratum. The material realities of declining wages, ballooning debt, and skyrocketing rents at the core of the neoliberal city have conspired to herd young people into unprecedentedly dense, poor, and precarious kinds of living arrangements
posted by the man of twists and turns at 9:30 AM on April 8, 2013 [1 favorite]


As the country considers future gay-marriage laws, filing a lawsuit against Arlene's Flowers could arguably make Freed and Ingersoll the new whipping boys of Christian conservatives

Barronelle Stutzman, Washington Florist Who Rejected Gay Couple, Faces Lawsuit From State Attorney General.
posted by ericb at 8:06 AM on April 10, 2013


ericb: " Barronelle Stutzman, Washington Florist Who Rejected Gay Couple, Faces Lawsuit From State Attorney General."

That would seem to be an open and shut case. Private businesses are places of public accommodation and therefore subject to federal and state discrimination laws.
posted by zarq at 8:16 AM on April 10, 2013


Zarq, they're arguing that since floristry is a legitimate venue of creative and personal expression, that her business falls outside the public accommodation statutes. I have no idea if this is a robust defense or not, but it's probably all they have.
posted by KathrynT at 8:26 AM on April 10, 2013


Well, seeing as the attorney in question apparently can't distinguish between the words "conscience" and "conscious," I have SOME idea about the robustness of the defense, I guess.
posted by KathrynT at 8:37 AM on April 10, 2013 [1 favorite]


KathrynT: "Zarq, they're arguing that since floristry is a legitimate venue of creative and personal expression, that her business falls outside the public accommodation statutes. I have no idea if this is a robust defense or not, but it's probably all they have."

I can't imagine it's a robust defense. I'm not a lawyer, but it seems to me that any business that's been licensed by the state is subject to discrimination laws, no matter what they happen to be selling.
posted by zarq at 8:40 AM on April 10, 2013


Gay Marine on DOMA: “Ours is not the military family that things happen easily for”. A Marine Captain awaits a transfer to Japan -- and a Supreme Court ruling on if his husband can move with him
posted by homunculus at 12:53 PM on April 10, 2013


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