Thursday, May 15, 2014

The slow march towards equality is never in vain

It appears in Arkansas there were two separate laws concerning same-sex marriage. One of them, written into the constitution, said gay couples could not get married. The other said county clerks couldn't issue marriage licenses to same-sex couples. The recent ruling by a state judge struck down only the amendment. When the state, as defendants, went to the state Supremes the court said we can't issue a stay (yet) because the case is premature. So it is back to the original judge. In the meantime a stay is effectively in place because of that second law.

Ari Ezra Waldman of Towleroad has a review of the Virginia marriage equality case before the 4th Circuit. He listened to the entire oral argument. He noted how vehement judge Paul Niemeyer was against our side. This judge kept insisting gay marriage was a "new right," to "get gay married." And that isn't in the Constitution. We have "B relationships."

Waldman says Niemeyer's goal was to make gay people the "other." It is one of the oldest conservative tricks and when that happens it is much easier to discriminate against someone. Waldman says Niemeyer comments expressed two ideas. The first is the legal argument and included the claim that since this is a new right there are no previous precedents (so much for what the Supremes said last summer). The second is a plain homophobic rant, a swipe at our dignity, showing the deepest unease about gay people. It is a preview of what Antonin Scalia might say. Another part of Niemeyer's comments was resignation. Whatever the outcome he and his colleagues would only be a speed bump on the way to the Supremes.

The other two members of the 4th Circuit panel, Roger Gregory and Henry Floyd, did their best to ignore Niemeyer. Gregory is clearly on our side. After arguing with the state about their concern for children as a reason to stop same-sex marriage he said, "It’s really disingenuous, your interest in children." Floyd's vote may be a bit harder to predict, though he did say the real issue is equal dignity, not a mom and a dad.

Ari Ezra Waldman, in another article for Towleroad, reviews the marriage equality ruling out of Idaho. Yes, the usual stuff. The major issues are due process, equal protection, and whether the federal gov't can intervene. The state came back and asked for a stay. The judge essentially said no -- you're going to lose anyway. There is no need to postpone the trauma inflicted on gay couples. Are we getting to a point where stays will routinely not be included in these rulings?

Jim, Burroway of Box Turtle Bulletin lists a few more issues in the ruling.

Tyranny of the majority:
This case asks a basic and enduring question about the essence of American government: Whether the will of the majority, based as it often is on sincere beliefs and democratic consensus, may trump the rights of a minority.

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights.

More recently, the Supreme Court confirmed that gay and lesbian individuals do not forfeit their constitutional liberties simply because of their sexual orientation.

Finally, and most critically, the Supreme Court’s marriage cases demonstrate that the right to marry is an individual right, belonging to all.
What about the kids?
The best that can be said for Defendants’ position is that some social scientists quibble with the prevailing consensus that the children of same-sex parents, on average, fare no better or worse than the children of opposite-sex parents.
And besides… Straight couples do not have to follow the norm of raising children. Idaho doesn't hand out licenses based on the couple's ability or desire to have children. Licenses are not withheld if the couple "might be, or are, non-optimal parents." Withholding legal, financial, and social benefits of marriage harms the children the state says they want to protect.

And religious liberty: The state doesn't have the right to prevent churches from officiating at same-sex ceremonies that is a part of their religion.

"Slow as the march toward equality may seem, it is never in vain."

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