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"It is at times difficult to see past the shrillness of the debate"
May 19, 2014 12:21 PM   Subscribe

A federal judge in Oregon has overturned that state's ban on same sex marriage, opening the door for couples to begin getting married immediately. (PDF)

Unlike in other states -- Idaho, Utah, Michigan, Virginia, Oklahoma and Texas -- there was no one with the immediate standing to appeal the decision.

Today, the 9th U.S. Circuit Court of Appeals rejected an attempt by the National Organization for Marriage to halt McShane's ruling.

Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004.

Your guide to today’s ruling at noon
posted by roomthreeseventeen (112 comments total) 24 users marked this as a favorite

 
!
posted by drezdn at 12:24 PM on May 19 [1 favorite]


Yay! I was waiting for this to finally happen. We had a stupid proposition in 2004 that redefined marriage in the state constitution as man-woman, and it was narrowly passed (which was revolutionary in 2004 during Peak Bush years). So glad to see it happen today.
posted by mathowie at 12:32 PM on May 19 [4 favorites]


Hear this Pdx hipsters - WA liked SSM before it was cool.

Actually, not, as Multnomah County attempted legal SSM by county ordinance before all of WA's challenges made it through our legislature, courts, and initiative processes.
posted by Dreidl at 12:32 PM on May 19 [3 favorites]


I hope that rejecting stays becomes the trend.
posted by Morrigan at 12:33 PM on May 19 [5 favorites]


Yes! I am so happy to see this all happening in our lifetime.
posted by gt2 at 12:35 PM on May 19 [1 favorite]


Its been embarrassing as an Oregonian that we were not out front on this issue, but I am just so effing thrilled to see a wrong corrected today. And proud that the State A.G. stood on the right side of this, refusing to defend the ban.

Huzzah!!!!

Everyone's rights in Oregon are stronger for this. We are all people with same rights, and arbitrary delineations undermine us all.

Happy Day!
posted by The Legit Republic of Blanketsburg at 12:36 PM on May 19 [2 favorites]


Another domino down! Congrats, Oregon!
posted by rtha at 12:37 PM on May 19


About goddamned time! Much happiness for this.
posted by Lutoslawski at 12:37 PM on May 19


!
posted by Going To Maine at 12:38 PM on May 19


No on 36: Help save Oregon marriages. Written September 2004 by Matt Haughey
posted by roomthreeseventeen at 12:38 PM on May 19 [3 favorites]


A coworker just ran up to me, all smiles, and said "I can get hitched!"

I love it when I get my news first-hand.
posted by klausman at 12:39 PM on May 19 [20 favorites]


Each new bit of good news is one step more along a long, hard road. Lately it feels like running. Congratulations, Oregon!
posted by Pope Guilty at 12:39 PM on May 19 [2 favorites]


If anyone needs anything, I am registered with Oregon as an officiant and am not doing a damn thing that can't be cancelled for something more important.
posted by mediocre at 12:40 PM on May 19 [41 favorites]




Hooray! The 2004 constitutional definition of marriage filled me with shame for the state I call home. Today's overturning makes me feel quite the opposite. It's time for an epic happy dance at my desk at work. Who'll join me? Woo!
posted by but no cigar at 12:40 PM on May 19 [2 favorites]


i'm in northern curry county, about halfway between bandon and port orford. i am a public official legally empowered to perform marriages by the state of oregon. if any gays/lesbians reading this want to get married down here, get a license and i will be happy to accommodate you. our perennially moribund economy needs whatever stimulus it can get; a stream of gay wedding packages would be quite a stimulus, and the chamber could honor me next year as mister gay wedding man.
posted by bruce at 12:40 PM on May 19 [55 favorites]


I had the job earlier of watching the internet so I could send a semaphore for one of my antsy coworkers who unfortunately had scheduled himself noon-one in a network-less bunker.

Woohoo!
posted by janell at 12:46 PM on May 19


Shortly after noon, the text message on my phone summarized this. I cried, whilst reading it to my wife. . .
posted by Danf at 12:46 PM on May 19 [1 favorite]


As a current Oregonian, it's embarrassing that it's taken us this long to get this far. As a former Hawai'i resident, I can take pride in the fact that we were at least trying to get this done way before all of y'all.
posted by kikaider01 at 12:55 PM on May 19 [1 favorite]


This decision was all but inevitable in Oregon and, at this point, all but inevitable in all 50 states.

I am disappointed in our Attorney General though, who failed in her responsibility to defend a Constitutional Amendment which was legally passed by a significant margin by Oregon voters.
posted by madajb at 12:56 PM on May 19 [1 favorite]


the attorney general is not bound to defend a state constitutional amendment which she deems counter to the federal constitution.
posted by bruce at 1:00 PM on May 19 [21 favorites]


Nothing in this court's opinion today will effect the miracle of birth, accidental or otherwise - p23, para 2.

Well I'm not saying that this is incorrect, but I'm just wondering if anyone ever thought that a court order could bring about a birth?

Also, hooray!
posted by Lemurrhea at 1:03 PM on May 19 [3 favorites]


the attorney general is not bound to defend a state constitutional amendment which she deems counter to the federal constitution.

I assume that's how the rest of the states where marriage was defined via a constitutional amendment (wtf) will go.
posted by hellojed at 1:04 PM on May 19


Other good quotes from the court decision:

In fact, Oregon recognizes a marriage of love with the same equal eye that it recognizes a marriage of convenience. It affords the same set of rights and privileges to Tristan and Isolde that it affords to a Hollywood celebrity waking up in Las Vegas with a blurry memory and a ringed finger. It does not, however, afford these very same rights to gay and lesbian couples who wish to marry within the confines of our geographic borders.

Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" 7 and it was played with great zeal and without a moment's thought to today' s political correctness.

Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

posted by Lemurrhea at 1:10 PM on May 19 [9 favorites]


Man, I found myself being all "This should go in the existing "Gay marriage ban struck down" thread."

Then I started giggling at my desk.
posted by corb at 1:12 PM on May 19 [28 favorites]


Another one in the win column. Yay!
posted by MoonOrb at 1:14 PM on May 19


How exciting that this is becoming just another routine thing that happens every month or so.

We've got, what, 10 states now? So just another three or four years to 50-state universal same sex marriage.
posted by Sara C. at 1:15 PM on May 19 [2 favorites]


Think of all the happy spouses who will wake up tomorrow with rings on their fingers and Tom Peterson haircuts on their heads.
posted by delfin at 1:17 PM on May 19 [1 favorite]


We've got, what, 10 states now? So just another three or four years to 50-state universal same sex marriage.

From the article...
McShane’s ruling means 13 federal courts have ruled in favor of marriage equality since the Supreme Court’s decision against DOMA in addition to state courts in New Jersey, New Mexico and Arkansas.
posted by bowmaniac at 1:19 PM on May 19 [2 favorites]


Fantastic conclusion in Judge McShane's decision [pdf]:
Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.
posted by audi alteram partem at 1:19 PM on May 19 [46 favorites]


Thanks, Nebraska, for still being firmly entrenched on the wrong side of history.
posted by Bunny Ultramod at 1:20 PM on May 19


\o/
posted by Sophie1 at 1:26 PM on May 19 [3 favorites]


I love on one side of the Columbia River, and work on the other side of it, and now I'm happy to know, whichever state I'm in, there is marriage equality!
posted by MoxieProxy at 1:30 PM on May 19 [4 favorites]


I spent my lunch crying and asking my husband via text if we should get remarried in Oregon.
posted by munchingzombie at 1:33 PM on May 19 [12 favorites]


I was sitting in Lardo on N Williams, eating a fried chicken sandwich while The Ramones (Sheena is a Punk Rocker) was playing in the background, when a friend Tweeted the Mercury article. I nearly whooped aloud.

It's going to be real tough to beat this Monday on any list of awesome Mondays.
posted by Kpele at 1:34 PM on May 19 [2 favorites]


Good news. I'm especially happy that I can look at this and say to myself, with satisfaction, "one more down", rather than being surprised. How long, do we think, until all states are in the justice column? Which will be the last holdout? Or will there be at last a nationwide decision?
posted by librosegretti at 1:39 PM on May 19


Looking at this map, my guess is that the last holdouts are going to be the states where same sex marriage is not currently being challenged in the courts. Just because, logically, a state like Montana would have to completely initiate the process of approving same sex marriage, whereas a West Virginia judge can bring that state into the fold with the stroke of a pen.

So, Montana, the Dakotas, and/or Mississippi will be the last holdout, if we're starting a pool. That said, I can't pick my favorite for dead last. Mississippi will likely respond to a change in status in Louisiana, since I'm sure the Gulf Coast resort towns want the wedding revenue. Montana seems potentially too liberal (at least in a "don't tread on me" freedom to do whatever kind of way) to really be the last state dragged into the 21st century. I'm going to guess South Dakota, just for fun.

But, I don't know, one of those "currently challenged in court" states could come from behind and be the last, just based on judicial priorities.
posted by Sara C. at 1:47 PM on May 19 [3 favorites]


I remember the sense of doom and gloom I had with my friends as we watched the results come in from the 2004 elections. The constitutional amendment was just turd icing on the shit cake. I haven't been there for a while, but I can imagine the dancing in the streets.
posted by Hactar at 1:52 PM on May 19 [1 favorite]


Well done Oregon. Good luck to anyone who can get married in Oregon after this ruling.

"I love on one side of the Columbia River, and work on the other side of it..."
posted by MoxieProxy

This made me laugh because I am 10 years old.
posted by marienbad at 1:53 PM on May 19 [2 favorites]


the attorney general is not bound to defend a state constitutional amendment which she deems counter to the federal constitution.

That appears to be her belief as well.
posted by madajb at 1:54 PM on May 19


Regarding holdout states, as a corollary: a somewhat paradoxical aspect of this process is that federal judges are often the ones smacking down these SSM bans. Obviously, federal judges are appointed for life. Part of the rationale behind that is the fact that federal judges get to be independent and not beholden to the whims of the local electorate. This means that the states being dragged into the 21st Century are often more, and not less, conservative than others which may still have some sort of ban or restriction on SSM. (It's also interesting to reflect on how having a degree of technocratic, non-democratic authority can actually be a Good Thing.)
posted by Sticherbeast at 1:55 PM on May 19 [1 favorite]


Also, huzzah!
posted by Sticherbeast at 1:55 PM on May 19


My boyfriend and I plan to marry at some point (not sure when because damn if it's not still pretty scary), and prior to today we could have done so legally because his birth certificate has an F on it. Now, though, we can marry with honesty and integrity and without exploiting a bureaucratic loophole. Until this decision, I wasn't aware how important that's been to me.

Maybe it's time we had that talk again. Woo! Oregon!
posted by malthusan at 1:59 PM on May 19 [10 favorites]


I'm placing a bet on full federal recognition before August.
posted by odinsdream at 2:00 PM on May 19 [1 favorite]




What's the time frame for all these states with overturns pending appeal? How long is the appeals process for something like this?
posted by Sara C. at 2:02 PM on May 19


I'm placing a bet on full federal recognition before August.

At best we are looking at a year from this past March, based on the Supreme Court's terms.
posted by roomthreeseventeen at 2:03 PM on May 19 [1 favorite]


Well I'm not saying that this is incorrect, but I'm just wondering if anyone ever thought that a court order could bring about a birth?

This is a happy thread, so probably don't think too hard about abortion and contraception cases (to say nothing of the Marlise Munoz case), but the short answer is "yes, unfortunately."

In case anyone was concerned, the typographical error will probably be corrected before the decision is published for posterity.

Also, congratulations to Oregon, which as we all know is home to MetaFilter Network Inc. I'm pretty sure this means that the marriages of The Great Enspousening of Aught-Nine are now valid and binding.
posted by jedicus at 2:05 PM on May 19 [15 favorites]


We've got, what, 10 states now? So just another three or four years to 50-state universal same sex marriage.

For me, the big milestone will be when the number of states that allows two people of the same gender to marry each other exceeds the number of states that lets cousins and/or 15-year-olds wed.

For the record, that's 26. Yeah.
posted by XQUZYPHYR at 2:10 PM on May 19 [4 favorites]


For me, the big milestone will be when the number of states that allows two people of the same gender to marry each other exceeds the number of states that lets cousins and/or 15-year-olds wed.

I think that cousins being allowed to marry is just as much of a right as two men or women being allowed to marry.
posted by bbqturtle at 2:16 PM on May 19 [2 favorites]


\o/

The halfway mark is not far away; if the challenged states all lose -- a result that looks increasingly likely -- the halfway mark will be reached directly.

That's to say nothing of any new ones to come.

So: \o/
posted by ChrisR at 2:21 PM on May 19


My bet is Montana will approve same sex marriage early, but only if you contract it in Montana or are a Montana resident. Just to be ornery.
posted by corb at 2:22 PM on May 19


I don't see it taking even three or four years. It's going to go to the Supremes within a year or two, and I don't see any of the existing votes changing. And there won't be enough ground left to cut another de minimis decision, likely.
posted by tavella at 2:25 PM on May 19


If you like goth, punk or metal, I have got the Portland area judge hook-up for you. (no seriously, Gothic Justice is a friend of mine, she a real judge, and she's offering to officiate!)
posted by vespabelle at 2:26 PM on May 19 [2 favorites]


Total noise/derail, but

GOTHIC JUSTICE: Oregon State Court Of Appeals Judge by day, Rasputina fan by night. Can this black-robed mistress of judicial darkness find a way to have it all?

(Would also consider a superhero comic.)
posted by Sara C. at 2:38 PM on May 19 [2 favorites]


sitting in Lardo

The fact that there is actually a restaurant with this name (I had to look it up because I couldn't believe it) surprises me more than the ruling. Not bad. Not bad at all.
posted by dlugoczaj at 2:48 PM on May 19 [1 favorite]


This is what marriage equality looks like. My college friend, and her wife [wife, previously].
posted by dhartung at 2:49 PM on May 19 [6 favorites]


Has anyone seen a copy of the opinion in which the Judge rejected NOM's attempt to have him disqualify himself? I'd like to read that.
posted by Area Man at 2:52 PM on May 19


That appears to be her belief as well.

It's not just a belief, it's a direction by the Attorney General. Defending obviously unconstitutional laws is a poor use of public resources, and nothing prevents anyone else from mounting a defense if they feel strongly about it.
posted by KathrynT at 3:06 PM on May 19 [4 favorites]


nothing prevents anyone else from mounting a defense if they feel strongly about it.

Standing does. But.....democracy, shmemocracy. As long as the result is good.
posted by jpe at 3:09 PM on May 19


Ok, yeah, nothing prevents someone WITH STANDING from mounting a defense. But that is as it should be. If there's nobody with standing, then there's no point to defending the law.
posted by KathrynT at 3:12 PM on May 19 [6 favorites]


I love on one side of the Columbia River, and work on the other side of it

Yeah, that's a hopeful Freudian slip/typo there.


Here's some interesting info on the National Organization for Marriage.
posted by MoxieProxy at 3:29 PM on May 19 [3 favorites]


In the last thread, I opined that there was a difference between an AG initially defending (or choosing not to defend) a law vs appealing (or choosing not to appeal) a lower court's decision striking down the law.

In the Oregon case, my understanding is that it was in the lowest court that AG Rosenblum declined to defend the law—In fact, basically joined with the plantiffs to ask for summary judgement in their favor, and articulates one after another the arguments that they are not making, along with citations as to where those other arguments have already failed in court.

So what in the world would I have the state of Oregon say in a filing that did its best to defend the law? That there is a same-sex marriage ban on the books is an undisputed fact, so if that alone is enough to keep SSM illegal the judge was not precluded from so ruling. I suppose that if the ballot measure itself had articulated a purported rationale for the ban, you might say that the AG should parrot that rationale to the court, but there was no rationale stated in the text that was voted.
posted by jepler at 3:34 PM on May 19 [1 favorite]


I have not seen it passed around very much by the opposing (wrong) side of this movement slash moment, but has anyone else seen anyone decrying the ruling by McShane based on the fact that he is himself homosexual? Please note, I am not saying that I believe this in any manner, but is anyone out there arguing that this fact would unduly influence his decision making on the matter?
posted by mediocre at 3:52 PM on May 19


Standing does. But.....democracy, shmemocracy. As long as the result is good.

Yeah, who would have standing? Can you suggest a person or an office?
posted by rtha at 3:54 PM on May 19 [1 favorite]


Standing does. But.....democracy, shmemocracy. As long as the result is good.

If someone suffers actual harm they'll have standing. "Two men kissing makes me feel icky" isn't actual harm.
posted by Talez at 3:56 PM on May 19 [10 favorites]


but has anyone else seen anyone decrying the ruling by McShane based on the fact that he is himself homosexual?

Yes, NOM brought it up (before the ruling). They brought it up about the judge in the prop 8 trial, too. Because apparently only gay people can be biased - heterosexual people, married or no, can be totally objective about marriage. /rolls eyes
posted by rtha at 3:57 PM on May 19 [3 favorites]


Anyone who believes that McShane should have recused himself based on the fact that he's gay has already tipped their hand. Because if a gay person should prevent themselves from ruling on marriage-equality because it materially affects them but a straight person is not under the same restriction? That can only be true of marriage equality doesn't materially affect straight people in any way. At which point their entire objection crumbles to dust. QED.
posted by KathrynT at 3:58 PM on May 19 [32 favorites]


Yes, NOM brought it up (before the ruling). They brought it up about the judge in the prop 8 trial, too. Because apparently only gay people can be biased - heterosexual people, married or no, can be totally objective about marriage. /rolls eyes

Can we compromise and find a confirmed bachelor judge? We could turn it into reality TV. It'd be like a hybrid of Court TV, The Bachelor, and The Voice.
posted by Talez at 4:00 PM on May 19 [1 favorite]


Jepler - Essentially, there is no one that has been able to come up with a satisfying rationale that the previously voted upon constitutional amendment is anything but a violation of human rights at this point. The best anyone has done in trying to defend it has been when an organization attempted to get a ballot measure that would allow businesses to deny marriage-related services to homosexual couples on the basis of "Religious Freedom" as has been seen in various instances nationwide as the tides turn in favor of gay marriage. However when judge McShane approved of the ballot but only using the word "discrimination", arguing (correctly) that there was no other way to describe what the measure was proposing no matter the cover for it. Based on that, the petitioners decided not to pursue a public vote on the matter, this just occured last week and was considered an important victory. Minor, in the face of what happened today. But still an important victory, as it had a judge stating that a religious freedom initiative had no other language that could describe it other than "discrimination".

Yes, it is shameful that Oregon voted for a marriage definining consitional amendment. But this was politically speaking, a long time ago. And was in many ways a direct reaction to Multnomah County's previous issuance of marriage licenses for gay couples without putting the matter to public vote. Those who tend to get up in arms about those sorts of things took this thing happened in the "big city" as it were to the rest of the state and was able to handily get its measure passed. But that was again, politically speaking, a lifetime ago. Surveys have suggested that most of those people who admitted to voting for the amendment previously have since changed their position.
posted by mediocre at 4:01 PM on May 19 [3 favorites]


If this holds, what is the current score, re: states allowing same sex marriage vs. those who don't?
posted by DirtyOldTown at 4:08 PM on May 19


So, it's the states that explicitly tried to forbid (via referendums and state constitution changes) gay marriage that are getting it first, right?

Good.
posted by el io at 4:10 PM on May 19 [7 favorites]


Does anyone know how many states voted to make SSM legal versus states that voted to make it illegal and got smacked by judges for voting incorrectly?
posted by codswallop at 4:34 PM on May 19


A lot of the Northeastern states had Yes To Same Sex Marriage initiatives (though I don't think all of them were legislative). You can also put California and I think Washington in that list, as well as Iowa. IIRC all the other states are getting the judicial smackdown. The current rash of states seems to be heavily Judicial Smackdown oriented.

I'm also pretty sure we've run out of states with nothing on the books one way or the other, though I think there are still a few without explicit constitutional amendments.
posted by Sara C. at 4:39 PM on May 19


Those of us over the age of thirty should take a moment to remember that we were born in an era when even many gay rights activists thought that marriage equality was an implausible, unreachable goal. Society has changed for the better, and it has changed fast.

For that matter, most of us of that age are either ex-homophobes or ex-never-really-thought-about-it-what-needs-changing-istas. We have changed for the better.
posted by justsomebodythatyouusedtoknow at 4:39 PM on May 19 [9 favorites]


we were born in an era when even many gay rights activists thought that marriage equality was an implausible, unreachable goal

We were born in that era? Shit, I'm 33 and remember thinking it was a total waste of LGBTQ rights orgs' time and money*, back during the Bush administration when all the constitutional ban amendments were passing right and left. There are elementary school students who were born in the era when "even many gay rights activists thought that marriage equality as an implausible, unreachable goal."

That's what makes this so delicious.

*I'm queer and was heavily involved with LGBTQ activism at the time.
posted by Sara C. at 4:41 PM on May 19 [1 favorite]


Those of us over the age of thirty should take a moment to remember that we were born in an era when even many gay rights activists thought that marriage equality was an implausible, unreachable goal. Society has changed for the better, and it has changed fast.

I'm barely over 30 and I still remember when having AIDS was so shameful (because it implied homosexuality which was still almost universally frowned upon) that Freddie Mercury kept it from the world until the day before he died.
posted by Talez at 5:02 PM on May 19 [2 favorites]


!
posted by Jacqueline at 5:05 PM on May 19


This and Idaho are going to be the two biggest FB posts for us ever, and we're not even in either of those states. But I was just happy I could use it as an excuse for an Oregon Trail joke.
posted by klangklangston at 5:26 PM on May 19 [1 favorite]


It may be worth noting that we already placed a measure onto the ballot to reverse the 2004 ban, with a poll showing about 58% support. So even had today's decision gone the other way, people would likely only have had to wait until November.

Not having to wait is better, though. I'm proud of my state today.
posted by Zimboe Metamonkey at 5:49 PM on May 19 [1 favorite]


Yeah, some of my friends were working on that ballot campaign and they've gotten laid off yet again. First, they got fired in New Jersey. Then they got fired in Indiana. Now it's Oregon. THANKS OBAMA
posted by klangklangston at 5:51 PM on May 19 [7 favorites]


OK, so gay marriage is legal in Oregon.


Your move, Dad.
posted by nickmark at 6:27 PM on May 19 [1 favorite]


Yippee!

Now if this will only rub off on Idaho.
posted by BlueHorse at 6:40 PM on May 19


Not having to wait is better, though. I'm proud of my state today.

A ballot victory would be an actual victory and I would've preferred to see that.
posted by codswallop at 6:50 PM on May 19


Ballot victory would have been an absolute certainty. I'm really happy that the folks getting married right now don't have to wait one day longer with their civil rights denied.
posted by a box and a stick and a string and a bear at 7:05 PM on May 19 [1 favorite]


A ballot victory would be an actual victory and I would've preferred to see that.

In the perfect world, all of Oregon would've turned out in November and voted to rescind the ammendment. In the real world, NOM would've poisoned the airwaves with nasty ads, many candidates on the right might've felt compelled to stake out a more extreme "winning" position, and it would probably have been depressingly hatefeul. I feel ya, but all in all I'm glad it's over with. Last I heard, about a hundred-odd couples were married today who weren't able to yesterday, and a lot more will do so between now and November. Their rights can't come soon enough.
posted by mumkin at 7:08 PM on May 19 [3 favorites]


This means my aunt and her partner of 30+ years can finally be legally married in the state where they live. I knew about the ballot measure, and was hoping this day was coming soon. It's a lovely surprise that it happened even faster. Getting a little teary now.
posted by creepygirl at 7:08 PM on May 19


About damn time, state where I used to live and hope to live again. Well done.
posted by computech_apolloniajames at 7:11 PM on May 19


May 17 was the 10 year anniversary of same-sex marriage becoming legal in Massachusetts.
posted by jenkinsEar at 7:47 PM on May 19 [3 favorites]



In the perfect world, all of Oregon would've turned out in November and voted to rescind the ammendment. In the real world, NOM would've poisoned the airwaves with nasty ads, many candidates on the right might've felt compelled to stake out a more extreme "winning" position, and it would probably have been depressingly hatefeul. I feel ya, but all in all I'm glad it's over with.


If you accept rule by judicial diktat, someone kinda can't complain about it when the same thing happens against their politics. The thought of rule by lifetime-appointed ideologically-approved party hacks just gave me a chill.
posted by codswallop at 8:49 PM on May 19


If you accept rule by judicial diktat, someone kinda can't complain about it when the same thing happens against their politics.

This isn't rule by judicial diktat, whatever that means. This is the judicial branch of our government doing exactly the job they are Constitutionally appointed to do. It's not like a bunch of federal judges got together over martinis and golf and decided that this year's theme was "end the one-and-only-one-penis marriage rule." What happened was that the Supreme Court of the United States of America said, essentially, "If you want to deny one of the basic civil rights of man to a given group of couples, you need to prove that you're doing it to protect an overwhelming state interest, not just because you think it's icky; otherwise you are violating the 14th Amendment to the Constitution." Again, that's not a "diktat," that's their JOB. And then, with these instructions in hand, Federal judges have been looking at the laws that states have passed restricting marriage -- which is their job -- and determining that, nope, "we think it's icky" is in fact the only rationale being put forth. And once they've drawn that conclusion, the laws can't stand.

This isn't black-robed tyrants upsetting the will of the people, any more than it was in Loving v. Virginia or Brown v. Board of Education. This is why we have a judicial branch of the government to begin with.
posted by KathrynT at 11:42 PM on May 19 [25 favorites]


rtha: "Yeah, who would have standing? Can you suggest a person or an office?"

In other states, including Illinois, the courts have accepted petitions by interested parties to intervene and defend a law that all pertinent officials refused to defend. In Illinois, our AG refused to defend the same-sex marriage ban on the grounds it violated the Constitution; the Cook County Clerk's office (against whom it was filed) refused to defend and said he believed in same-sex marriage; the Cook County prosecutor was offered the gig and after a few days deliberation announced she felt the ban was unconstitutional and could not defend it. The court then accepted petitions from other groups wishing to intervene and defend the act and accepted a petition from two downstate county clerks represented by the Thomas More society (conservative Catholic-ish legal group) and denied several others (Church of Christian Liberty, Grace Gospel Fellowship, and the Illinois Family Institute).

It's one thing for an attorney to take a case they disagree with but believe has legal merit; if a lawyer believe a case has no legal merit, they are ethically bound not to take the case. State officials refusing to defend laws banning same-sex marriage have been getting a lot of press because it's a fairly "sexy" Constitutional issue that's easy to understand for a layman, but the practice goes back at least to (quick search) Jefferson, and the Supreme Court has addressed the issue of whether officials have a "duty to defend" laws they believe (not just in a touch-feely way but with actual reasons) are unconstitutional several times, from several angles.

It's one thing to say "This is a very stupid law, your honor, but the people/legislature were within their rights to make it." It's a different thing to say, "This is an unconstitutional law that cannot stand but, um ... people tried to make it so obviously they feel really strongly about it? So ... it should stand, for, um, Reasons? Reasons that this court and many other federal courts have already declared are not actually reasons? So ... yep, this is going really well so far, great Tuesday."

Anyway, it's an issue of longstanding that courts have various options for addressing, and they generally address them on a case-by-case basis, which I think is all they really can do, since everyone involved from the law-making to the law-deciding is human and humans make mistakes and have quirks and it's a complicated issue on which no single rule will address all cases.
posted by Eyebrows McGee at 5:46 AM on May 20


judicial diktat

I don't understand this attitude, and I never have. Voters and legislators get things wrong. Regulatory bodies get things wrong. Courts are part of the system for redressing these wrongs, and I doubt that anyone would say that courts should *never* have a say in the system.

Remember Romer? The referendum basically said that anyone in favor of gays having rights could not express that view politically by advocating for gay rights in the lawmaking branch. Does opposing "judicial diktat" really mean that you (general and specific) are opposed to the courts considering whether or not such a law passes Constitutional muster just because it was passed by referendum and not by the regular legislative process? That seems so strange to me.
posted by rtha at 6:03 AM on May 20


This isn't black-robed tyrants upsetting the will of the people, any more than it was in Loving v. Virginia or Brown v. Board of Education. This is why we have a judicial branch of the government to begin with.

I happen to support a lot of the decisions of the courts - this being one of them. I think it's extremely important to have a thoughtful, educated group who can act as a curb on the worst excesses of the majority. But at the same time, I think it is easy to understand the frustration of some at this sort of process - which is, indeed, extremely undemocratic. Judges at that level are appointed rather than elected, and their makeup depends largely on who held office when they were being appointed. For example, there's a lot of frustration over the Citizens United ruling, because people correctly feel that they would not have voted for such a circumstance.

Tyrant has come to mean something different than it once did. In early ancient Greece, it simply referred to the form of authority, rather than the moral character of the individuals involved. And in this case, it is black-robed tyrants - individuals who obtained strong power through influence and factionalism - thwarting the will of the people. I personally think that's not necessarily a bad thing, as the will of the people often produces terrible, terrible things. But a more solid democrat might disagree, believing that if the people make erroneous choices, it is their right to do so.

In essence, those who complain about judicial activists are thus correct in a sense, but they fail to recognize that it's not just their ox being gored most of the time.
posted by corb at 6:47 AM on May 20 [1 favorite]


Mississippi will likely respond to a change in status in Louisiana, since I'm sure the Gulf Coast resort towns want the wedding revenue.

The part of me that loves my state and is proud of its artistic traditions sincerely hopes you're right. Unfortunately, we have another, far less celebrated tradition of digging in our heels in response to federally mandated social change. As with the rest of the country, attitudes toward lgbtq, especially among the young, have been and are slowly changing in Mississippi. I hope equality comes soon, and I hope I'm wrong and it registers with nary a blip. But I'm not optimistic.
posted by echocollate at 6:54 AM on May 20


corb: But at the same time, I think it is easy to understand the frustration of some at this sort of process - which is, indeed, extremely undemocratic.

Only in the original Greek sense of "democracy" being the rule of a self-interested mob. In the sense of a pattern of ordered liberty, this is democracy in action: the recognition of basic freedoms, and the protection of the minority from the depradations of the majority.

This is very specifically the American form of democracy, and anyone with "frustration" can take it up with Marbury v. Madison right after they figure out how to go 211 years into the past.
posted by spaltavian at 9:05 AM on May 20 [3 favorites]


We've got, what, 10 states now? So just another three or four years to 50-state universal same sex marriage.

No. One year at the outside. A case is going to make it to SCOTUS by their next term, so a definitive ruling will be issued next year.

The thought of rule by lifetime-appointed ideologically-approved party hacks just gave me a chill.

Worth noting that the laws in Nevada were struck down by a hard-right GWB Republican nominee to the bench.

thwarting the will of the people

More than half the people in the USA support SSM. Whose will is being thwarted here, regressive asshats? I am quite comfortable with that.

believing that if the people make erroneous choices, it is their right to do so.

Being disingenuous by wrapping up 'denying basic civil rights to a subset of the populace because what they do is icky' as 'erroneous choices' is a particularly feculent form of bullshit.

It is also nobody's right to deny me mine.

But at the same time, I think it is easy to understand the frustration of some at this sort of process - which is, indeed, extremely undemocratic.

Okay, so it's sad that a Canadian knows more about how your legal system works than you do, but here's the short version: judges are required to rule on whether something is unconstitutional or not, when the challenge is on a constitutional basis. All the way up to SCOTUS, that is their job and they are doing it. Checks and balances, remember?
posted by feckless fecal fear mongering at 9:14 AM on May 20 [2 favorites]


Ruling in Pennsylvania due today. Yinz cross your fingers.
posted by octothorpe at 9:19 AM on May 20 [1 favorite]



This isn't rule by judicial diktat, whatever that means.


Can't not read this as judicial kitkat. Yum kitkat.

Many congrats Oregon.
posted by sweetkid at 9:24 AM on May 20 [1 favorite]


oh and also

\o/
posted by feckless fecal fear mongering at 9:27 AM on May 20 [1 favorite]


Just declared unconstitutional in PA!
posted by theBigRedKittyPurrs at 11:32 AM on May 20 [2 favorites]


Needless to say, this was the best news all day yesterday.
posted by cortex at 11:33 AM on May 20 [3 favorites]




"If you accept rule by judicial diktat, someone kinda can't complain about it when the same thing happens against their politics. The thought of rule by lifetime-appointed ideologically-approved party hacks just gave me a chill."

This is idiotic, sorry. This decision is the very point of having an independent judiciary to begin with, and cheering a good decision in no way eliminates the ability (even duty) to complain about bad decisions. Judges are supposed to protect the rights of minorities from majoritarianism.

"But at the same time, I think it is easy to understand the frustration of some at this sort of process - which is, indeed, extremely undemocratic. Judges at that level are appointed rather than elected, and their makeup depends largely on who held office when they were being appointed."

It's undemocratic because democratic means lend themselves to majoritarianism. "Democracy" isn't a panacea.

"For example, there's a lot of frustration over the Citizens United ruling, because people correctly feel that they would not have voted for such a circumstance. "

More because of the actual implications of the ruling and how the ruling was formed. Honestly, it's overstated in general by people who misunderstand the ruling, but the underlying philosophy is corrosive to democracy, whether enacted by Congress or courts.

"Tyrant has come to mean something different than it once did. In early ancient Greece, it simply referred to the form of authority, rather than the moral character of the individuals involved. And in this case, it is black-robed tyrants - individuals who obtained strong power through influence and factionalism - thwarting the will of the people."

This is kinda a weird reading that relies on a lot of conflations. "Tyrant" was a singular authority in original use, sure, but that was decried by Plato and was seen as pejorative by Hellenistic Greek; early ancient Greece isn't usually a touchstone. If I recall correctly, it was the Solonic reforms that first started the nominal end of tyranny as norm in Athens.

Further, describing these judges as black-robed tyrants is incoherent — they function as part of a system and emphatically do not have sole authoritarian power. In either sense of "tyrant," that's just nonsense, an emotional appeal for people who disagree with the ruling. (Rulings can be tyrannical in the pejorative sense, but the judges are not tyrants.)

"I personally think that's not necessarily a bad thing, as the will of the people often produces terrible, terrible things. But a more solid democrat might disagree, believing that if the people make erroneous choices, it is their right to do so. "

That "solid democrat" needs to be better acquainted with the philosophical arguments of democratic theory, then. If they invoke "rights," then they're implicitly acknowledging that a bare democratic scheme is insufficient.

"In essence, those who complain about judicial activists are thus correct in a sense, but they fail to recognize that it's not just their ox being gored most of the time."

While I appreciate the conciliatory tone, especially since you're making it clear that you don't believe this, they really aren't correct in that sense and don't know what the hell they're talking about. There are occasional bouts of what might be termed "judicial activism" though by god that's a loaded term, but they're generally only valid when they're reading new law into existing statute, and even then it's usually dodgy. The most obvious example of recent judicial activism is redefining the second amendment to protect individual gun rights to the extent they are covered, despite some Black's retconning it was pretty much invented whole cloth.
posted by klangklangston at 12:33 PM on May 20 [3 favorites]


Justices Reject Call to Halt Gay Marriages in Oregon

The Supreme Court on Wednesday rejected a request to halt same-sex marriages in Oregon. The court’s one-line order gave no reasons for declining to issue a stay.
posted by Blazecock Pileon at 6:21 PM on June 4 [3 favorites]


Unless I am greatly mistaken, that bodes AMAZINGLY AND INCREDIBLY WELL for the inevitable SCOTUS case next year, yeah?
posted by feckless fecal fear mongering at 7:25 AM on June 5


If it was a rejection on standing, it wouldn't apply to places like Utah. Oregon's officials were down with the ruling, it was NOM trying to get a stay.

It's hard to see Kennedy suddenly changing his mind, though. He knows perfectly well that if anyone remembers him in a hundred years, it's going to be for the DOMA and Lawrence vs. Texas decisions.
posted by tavella at 8:06 AM on June 5


Unless I am greatly mistaken, that bodes AMAZINGLY AND INCREDIBLY WELL for the inevitable SCOTUS case next year, yeah?

It certainly doesn't bode poorly, but it's hard to read too much into this: the state of Oregon wasn't appealing the decision, so the idea that the ruling should be stayed for...reasons? doesn't make much sense. It may have been quite different had the state of Oregon raised the issue. This rejection was pretty standard.

The justice who decides this for the Ninth Circuit (which includes Oregon) is Kennedy, so had he granted the stay, that would have been quite alarming indeed, but I don't think you can read too much into this kind of standard refusal.

And, I agree with tavella: Kennedy has been writing the book on this issue with Roemer, Lawrence, and Windsor, and it would be deeply weird for him to reverse course. It would be incredibly tough for him to reconcile the language of his previous opinions with a vote against marriage equality, and it's hard to imagine it would even be a close call for him. This is his legacy, he probably believes it's the right thing to do, and by the time the case will reach the Court he'll have evidence from a number of jurisdictions across the US that in addition to being the right thing to do, it's actually working.
posted by MoonOrb at 9:13 AM on June 5 [2 favorites]






\o/ \/\/
posted by feckless fecal fear mongering at 1:45 PM on June 6 [1 favorite]


It is DECLARED that art. XIII, § 13 of the Wisconsin Constitution violates
plaintiffs’ fundamental right to marry and their right to equal protection of laws under the
Fourteenth Amendment to the United States Constitution. Any Wisconsin statutory
provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a
“husband” and a “wife,” are unconstitutional as applied to same-sex couples.

posted by MoonOrb at 2:19 PM on June 6 [1 favorite]


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