Gay marriage mania, and more to come

With the gay marriage victories in Oregon and Pennsylvania this week, the Human Rights Campaign produced a nice summary of where we are on the marriage equality issue overall, including taking stock in upcoming court cases.

Just to step back, the reason you’ve been hearing so much about gay marriage over the past year is because of the momentous Supreme Court decision in US v. Windsor, released last June.

Marriage equality advocates celebrate in Minnesota.

Marriage equality advocates celebrate in Minnesota.

In the Windsor case, the Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).  As a result of Windsor, we’ve now won in 18 consecutive courts on the marriage issue in a little less than a year.

Family celebrates marriage equality victory in Michigan.

Family celebrates marriage equality victory in Michigan.

HRC reports that there are currently at least 70 court cases challenging gay marriage bans across the country, 44 in federal court and 27 in state courts.

Gay couple in New Jersey gets legally married in 2013. In Russia, they'd be beaten then thrown in jail.

Gay couple in New Jersey gets legally married in 2013.

But even more interesting, there are ten marriage equality cases going before five federal appellate courts in the coming months.

The plaintiffs in Pennslyvania, along with their families.

The plaintiffs in Pennsylvania, along with their families.

Now, the reason those are presumably interesting is that the only court you can go to after you lose in a federal appellate court is the US Supreme Court.  And the Supreme Court has already ruled on this issue, so it’s likely an appeal by the bad guys (assuming they lose in federal district court) won’t get them anywhere.  So once the appeals courts decide, that’s it, game over in that state.

We currently have marriage equality in 18 US states, and Pennsylvania makes nineteen if the decision isn’t stayed by an appellate court.  These are the 18: CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, OR, RI, VT, and WA.

32 states, per HRC, have a law or constitutional amendment restricting marriage to one man and one woman.

It really has been an amazing year.

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CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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44 Responses to “Gay marriage mania, and more to come”

  1. MeganLinefyl321 says:

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  2. Bill_Perdue says:

    Bill Clinton championed and endorse DOMA before the election. To repeat “. “Months earlier, May 23, 1996, Clinton made his first comments on DOMA, jumbling the specific effect of the bill but echoing comments from his press secretary that he would sign it. On July 11, 1996, the administration issued a Statement of Administration Policy: ”The President … has long opposed same sex marriage. Therefore, if H.R. 3396 were presented to the President as ordered reported from the House Judiciary Committee, the President would sign the legislation.”

    He supported it before it passed. He did it because he’s a bigot and because he was a right winger moving right. Just like Obama is today. He was ahead in the polls all summer and was never seriously threatened by Dole.

    What makes you think that if most Democrats and Republicans were bigots that it’s was some how OK for Clinton to vastly increase the weight of legal bigotry directed against us, as he also did in the case of NAFTA.

  3. FredDorner says:

    Bill Clinton championed DOMA

    That’s a total lie. He opposed it before it passed, and it had a veto-proof majority.
    He did however cozy up to DOMA during the 1996 election campaign, in order to defuse DOMA as an election issue – which was why the GOP authored the bill in the first place.

  4. FredDorner says:

    You’re correct that no court has applied full faith and credit to marriages generally (due to the public policy exception), however various courts have ordered a state to recognize certain specific marriages on an as-applied basis, including some same-sex marriages.

    While DOMA section 2 simply restated the status quo, this link has a good argument for why it really is harmful (as well as a detailed discussion of why full faith and credit doesn’t apply):

  5. Mark_in_MN says:

    I’d be quite surprised if Ginsburg retired at the end of this term. Given the number of cases currently before appeals courts, and expedited schedules in several of them, I would expect that Petitions for a Writ of Certiorari would be before the court early in the next term, quite possibly allowing the court to hear it yet next year. I think the odds are good, certainly no worse than 50-50, that it will be on the docket next term. If not, the term after that. I think it unlikely the court will change before then. It’s possible, but I doubt it will be different.

    As to your suggestion about the court rehearing Windsor, I don’t think that’s possible now. The case has been finalized for quite some time now and all the final orders issued. The only way the court could revisit it is if they were to receive another case on appeal that addresses those issues.

  6. MichaelS says:

    Everyone seems to be discussing the inevitable follow-up by the Supreme Court as a done deal. Let’s remember that last year’s decision was a close 5-4 ruling… If by the time this issue reaches the Supremes again, Justice Ginsburg (or another justice) may be gone – and who knows who may be there instead?
    I would not put it past these conservatives on the court to immediately re-hear all the arguments and reverse last year’s decision. Not for a minute.

  7. MichaelS says:

    Agree. They’ll throw in the towel on marriage, but continue to demand the right to fire us from our jobs, since being married would throw the gay lifestyle in their kids’ faces.

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  9. FLL says:

    Other excerpts from the Metro Weekly article quoted on this thread:

    That view is shared by Richard Socarides, the Labor Department’s White House liaison when DOMA was introduced in the House in May 1996, but became the White House liaison to the gay and lesbian community in the midst of the debate over DOMA. Socarides says, ”It was clear to us from the first moment we heard about it that it was a Republican Party campaign stunt to box Clinton in and to give them something to run on against him, and they were very, very clear on that.”

    He [Barney Frank] says politics were at the center of DOMA, noting of Dole’s campaign, ”They were lagging behind Clinton, and they saw this as a classic wedge issue. They saw it as a way to force Clinton to either take a position that would be unpopular in the country as a whole – or alienate gay people. It was all the Dole campaign.” Sen. Edward Kennedy (D-Mass.), who led the Senate opposition to DOMA, said as much at the time, calling the bill the ”Endangered Republican Candidates Act” in his opening statement in the July 11, 1996, Senate Judiciary Committee hearing on the bill. He went on to say of DOMA’s intrusion of state regulation of marriage, ”I assume that Bob Dole’s copy of the 10th Amendment has a new hole in it.”

    Some commenters on this thread might want to explain themselves more clearly before they unwisely and deceptively quote articles written by Chris Geidner.

  10. Mark_in_MN says:

    I don’t believe the courts have ever applied full faith and credit to marriages. It applies to judicial proceedings and records. A state actually may refuse to recognize a first cousin marriage performed in a state where they are allowed, for example. It seems to me that the states really don’t need to rely on this particular piece of federal law to not recognize out of state same-sex marriages. Section 2 of DOMA, it seems to me, is primarily odious not because it actually does much of anything, but because of it is an expression of legal antagonism toward gay and lesbian people and their relationships.

    An equal protection ruling requiring states to provide access to marriage for same-sex couples would mean that non-recognition of out of state same-sex marriages would become a moot issue because all states would need to recognize them.

  11. Bill_Perdue says:

    In reality, bigots do rebrand to get votes and money, and in reality, it doesn’t get ENDA or a CRA passed when it has a chance of getting enacted.

    That’s because Gore Vidal was right: ‘There is only one party in the United States, the Property Party … and it has two right wings: Republican and Democrat. Republicans are a bit stupider, more rigid, more doctrinaire in their laissez-faire capitalism than the Democrats, who are cuter, prettier, a bit more corrupt — until recently … and more willing than the Republicans to make small adjustments when the poor, the black, the anti-imperialists get out of hand. But, essentially, there is no difference between the two parties.’

  12. Mark_in_MN says:

    In Bill Perdue’s world, people don’t change their minds. They don’t come to different conclusions. They merely “rebrand,” by which he means pretend.

  13. Bill_Perdue says:

    Bill Clinton championed DOMA, signed it and then gloated about it with ads on right wing religious and redneck stations. He did that because he’s a bigot, his rebranding notwithstanding. “Months earlier, May 23, 1996, Clinton made his first comments on DOMA, jumbling the specific effect of the bill but echoing comments from his press secretary that he would sign it. On July 11, 1996, the administration issued a Statement of Administration Policy: ”The President … has long opposed same sex marriage. Therefore, if H.R. 3396 were presented to the President as ordered reported from the House Judiciary Committee, the President would sign the legislation.”

    The bigotry of the Clintons is not lessened by the fact that many other Democrat bigots like Biden also voted for DOMA and defended it. That only underscores the role of large numbers of Democrats and Republicans as bigots, rebranded or not.

  14. Daddy B says:

    There may also be a 3rd way forward although not ideal – right now Section 2 of DOMA still stands – which allows states to violate the full faith and credit clause of the US Constitution (recognizing legal proceedings from other states) First Cousin marriages are not legal in all states, however, if you are legally married in a state that does allow them, they are recognized in other states and by the federal government. As a northern Virginia resident, we were married in DC – the fed’s recognize our marriage but VA does not. The infamous Loving case for interacial marriages was in essence about that – but the Supreme Court not only made VA recognize their out of state marriage, but also struck down the law – i believe using “heightened scrutiny” like we’ve seen in the CA cases out west. Ideally, strike them all down under equal protection clause but also get rid of DOMA fully and strike down sec 2.

  15. BeccaM says:

    I concur. That’s probably the likely outcome, and so far I’m not seeing much sign of the Circuits being divided.

  16. Hank Kelly says:

    ok, you made me feel better and so does this:

    By the time the Supreme Court is asked to decide whether states can bay gay marriage, Kennedy will have a few dozen lower-court precedents implementing his Windsor reasoning to cite as support when he inevitably decides that gay marriage must be legal everywhere. Which, to give him his due, is tactically clever: He was understandably reluctant to be the deciding vote that makes SSM legal coast to coast in one fell swoop, so instead he planted a seed in Windsor which he knew lower courts would nurture for him. When this issue finally lands on his desk again, gay marriage will already be a court-enforced reality in dozens of states, with the public having had several years to adjust to it. All SCOTUS will have to do is rubber-stamp the lower courts. Minimal upheaval, minimal heat for Kennedy.

  17. FLL says:

    Yes, it sounds like more of an excuse than a genuine argument. I’ve read comments here and there on the Internet to the effect that appealing Judge Jones’ decision would not be helpful for Corbett in his reelection campaign. Appealing pro-equality decisions must have gotten very unpopular with voters.

  18. Swami_Binkinanda says:

    /Look at all those happy people, it’s disgusting. If those people are happy then I have to be more unhappy simply to balance out the threat of actual joy breaking out. Buzzkill conservatism demands the suppression of happiness. /

  19. BeccaM says:

    That, like… totally makes no sense. I mean, I’m happy Corbett went this route, but isn’t the whole point of an appeal to argue that the ‘high legal threshold’ was erroneously set? Otherwise a case like Perry v. Hollingsworth never should’ve made it to the 9th Circuit, much less argued before the Supremes.

    Well, whatevs, gift horse and all that. If this is what Corbett feels he needs to save face among the GOPers and Baggers, then so be it.

  20. FLL says:

    Below is a link to Governor Corbett’s website where he explains his rationale in an official statement which contains the following excerpt:

    I have thoroughly reviewed Judge Jones’ opinion in the Whitewood case. Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal.

  21. FLL says:

    Agreed. I’m only saying that if there is a split among the appellate courts, the Supreme Court has the option to deny appeals, if that suits them. They could take a case anyway for the reasons you mention. If there actually is a split among the appellate courts, the Supreme Court almost certainly would take one of the cases.

  22. Mark_in_MN says:

    Your point is well taken in the present context. But then my intended audience may not be the immediately previous comment, either.

  23. Mark_in_MN says:

    But remember, it only takes four justices to agree to hear a case. Your analysis may be followed by some (perhaps on both sides of the question), but it could come to the court simply because the conservatives want to have a chance to reverse, get Scalia vent his vile spleen, or go on record. Or perhaps a couple who want that and a couple who want to settle it clearly for marriage equality and remove doubt. The Court has seemed to be willing, and sometimes eager, to take some cases for the (political?) purpose of settling an issue quickly.

  24. Mark_in_MN says:

    Justice Kennedy is a conservative justice. He’s going to tailor his argument directly to the case and not go farther than necessary. He did this here, while, I think, signaling that this is not inherently the end of the road. It was not necessary to go to the Fourteenth Amendment’s Equal Protection clause, so he did not include it. That state law, not federal law, regulates marriage in our federalist system is pretty firm. But it certainly does. It preclude the Equal Protection clause limiting how the states can regulate marriage. The logins of the ruling is not symmetrical here, and there is nothing (including some misbegotten idea of consistency) that would require it to be so.

    Kennedy’s writing in the major gay rights cases (Romer, Lawrence, Windsor) has been consistent for gay and lesbian citizens against government interference and restrictions. I can’t easily see him doing much else when a direct marriage case comes before the court. Indeed, I’d expect him to be in a pro-marriage equality majority and specifically wanting to write an opinion, and probably a pretty sweeping one at that.

  25. FLL says:

    From your reply:

    “Details do matter. They may not exonerate, but they are necessary if one is going to paint an accurate picture.”

    Yes, I understand that you are trying to paint an accurate picture by analyzing the facts in a rigorous way. There are, however, adorable niches on the Internet that are not reality-based. ;) Ask yourself this: Is a commenter genuinely trying to formulate an argument or is it just entertainment (or perhaps self entertainment)?

  26. Mark_in_MN says:

    Republicans, or at least any that could make it into a short list for presidential candidates, don’t care if it makes them look like jerks.

  27. Mark_in_MN says:

    Bill Clinton did sign these-called Defense of Marriage Act, after calling it “unnecessary and divisive” and it passing Congress by a veto proof margin. Many Democratic members of Congress can share the blame with Bill Clinton, but it must be noted that it wasn’t a Democratic initiative. The bill was introduced by Bob Barr into a Congress where Republicans controlled both houses of Congress. It was vigorously opposed by Ted Kennedy, whose attempt to at least include an ENDA failed in the .senate by one vote.

    Details do matter. They may not exonerate, but they are necessary if one is going to paint an accurate picture. Also necessary is to remember that in 1996 we inhabited a very different social situation in the United States than we do today.

  28. FLL says:

    At this point, Corbett could reasonably argue that his legal team convinced him that appealing would be a waste of time and taxpayer money. I doubt if even his Republican political base would have much to say to counter that argument. I think the game is over as far as substance. All that’s involved now is waiting for various court schedules to kick in. I’m sure the U.S. Supreme Court will weigh in by June of 2015, either by denying all requests for appeal (in the case where there is no split among the appellate courts) or by taking one of the cases and handing down a decision by June, 2015.

  29. BeccaM says:

    Wow. I might be mistaken, but I think it’s also only the 3rd time a GOP governor has thrown in the towel before all appeals were exhausted on upholding a gay marriage ban. (NJ Gov. Christie and NM Gov. Martinez were the first two.)

  30. FLL says:

    It looks like Governor Corbett has had his fill of fighting equality and is throwing in the towel. That would make Pennsylvania the 19th permanent member of the group of marriage equality states:

  31. BeccaM says:

    I’m not so sure the GOPers will give up on the anti-gay platform yet. It isn’t the fact that overall support for gay marriage (and LGBT rights in general) has never been higher, but rather how this remains a position popular among the radicalized Republican base.

    It’s the same way they won’t give upon their race-baiting either. Or their misogyny.

  32. BeccaM says:

    The detail I’ve found fascinating is how, in the last year, judges who overturn the state bans on gay marriage are nearly always now refusing to stay their rulings pending appeal. The result of course being an inevitable several hundred marriages performed before a higher court stay is granted — with the DoJ proactively saying the federal government will recognize those marriages as valid.

  33. BeccaM says:

    Any EO or law can be undone. That’s never an excuse not to do it in the first place.

    Especially since, in this case, we could have had up to eight full years of a federal contracting regime that banned gay discrimination among their employees.

    That is, we could have had it if Obama had kept his campaign promise. And if he stopped using LGBTs as a political football when he knew damned well ENDA wasn’t going to pass — and he didn’t even really try.

  34. Monophylos Fortikos says:

    The end game? Now we’ll get to see the GOP double down on abortion, which will become THE issue by which the right wing will flaunt its ostensibly superior morality, now that obsessing over gays is looking like more and more of a loser.

  35. FLL says:

    LOL. If we really want to imitate Greco-Roman antiquity, then ESPN would be the natural home for real-life displays of same-sex kissing and affection on national TV. Either ESPN or World Wrestling Entertainment. How could One Million Moms object? They probably don’t even watch sports channels. WWE even has the precedent of yağlı güreş (oil wrestling), which is the national sport of Turkey. In addition to being obsessed with pulling down their opponent’s pants, Turkish oil wrestling always seems to be deliberately executed in slow motion, even to the point of freezing and “posing for holy pictures” for minutes at a time:

  36. FLL says:

    Since these cases are going before for five appellate courts, I think the U.S. Supreme Court is watching to see if there is a split among the appellate courts. If there is no split and we win in all five appellate courts, the Supreme Court won’t even hear an appeal, and the game will be over. If there is a split in the five appellate courts, the Supreme Court will almost be obliged to take one of the cases, most likely the Virgina case that Olson and Boies are working on.

  37. dcinsider says:

    I’m fine with these marriages as long as we don’t have to watch them kiss on national TV! Ick!

  38. Hank Kelly says:

    John, I hope you’re right. Here is what concerns me from Jay Michaelson at The Daily Beast:

    “Unlike the recent decisions, Justice Kennedy’s Windsor opinion was a narrowly tailored document with a two-part logic. First he observed that marriage is a matter for the states, some of which had extended it to include same-sex couples. Second he wrote, “interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”

    I’ve italicized that phrase for a reason. Notice that Justice Kennedy did not say same-sex marriage is a fundamental right or that DOMA violated the equal protection clause on its own terms. Rather, the state of New York had conferred the “dignity” of marriage on its gay and lesbian couples—and Congress had taken it away. Concluding that DOMA violated the Fifth Amendment’s due process clause, the Windsor opinion held that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

  39. It can be undone, but then it makes the future GOP president look like a jerk. Which is its own political benefit.

  40. It’s already gone to the Supreme Court. It’s over. Yes, they could change their mind, but that’s HIGHLY unusual, and frowned up. In fact, it raised some eyebrows that the court changed its mind on sodomy, when in the 80s it found sodomy laws constitutional then turned around in 2004 (ish) and declared them unconstitutional only 20 years later. It would be beyond unusual for the court to change its mind on marriage in only a few years. I think the cat’s out of the bag on this. And it’s helping us immensely that we’re having all these marriages in the states. There’s just no way that the court is going to undo marriages, undo legalized marriage, in the states that now have it. Even a nasty gop court would take pause at that I think. But generally speaking, the supremes will probably turn down these appeals, and say “we already decided on this.”

  41. Bill_Perdue says:

    There are no inherent problems in establishing a precedent for providing protection for LGBT employees in hiring, firing and wages. None.

  42. MyrddinWilt says:

    The problems with signing an executive order is that it 1) can be easily undone by the next President, 2) the scope is limited to executive powers and 3) it will put off an act until the next President.

    It does not look likely the Dems are going to take the house in November, but it is still quite possible. We should not be giving up on a bill yet.

    That said, they have used Executive Orders in other areas like the minimum wage.

  43. Hank Kelly says:

    All of the gay victories mean nothing when this goes to the Supreme Court. Remember?, there are 4 right wing bozos in robes who don’t look upon gays as being human beings. They only look at our sexual acts which are very icky to them. There is no guarantee that the swing vote will come from Kennedy. In otherwards, they could rule that states have the right to impose gay marriage bans.

  44. Bill_Perdue says:

    These victories are the result of the courage and tenacity our communities who accepted the challenge posed by the right – DOMA by Clinton and the Democrats and state DOMAs by Bush and Republicans.

    The Prop 8 betrayal in Obama in 2008 might have produced demoralization and defeatism but it sparked a series of marches and demonstrations that radicalized a new generation of activists who built the 2009 National Equality March which drew 200,000 plus to DC to demand marriage equality, ENDA and a hate crimes bill, which frightened Democrats hastily passed and signed. More demonstrations and more legal battles led to the demise of the worst parts of DOMA and a huge change in the polls. Gallup reported yesterday that “Amid several legal victories for gay marriage, Americans’ support for it has reached new high of 55%, which includes increasing support among young adults. “ The whole report has some interesting data, including their conclusion that almost 80% of youth support marriage equality.

    Next on the agenda is a bigger fight for a robust and inclusive Civil Rights Amendment or ENDA. More and more people are becoming critical of ENDA and supporters of a CRA that inculdes us. We don’t need to be set apart, on the contrary we need to promote alliances with other people who need equality – people of color, women, unions, immigrants and others. We can begin by increasing the pressure on Obama to keep his 2008 promise to sign and ENDA EO. “Obama, as a candidate seeking the Democratic nomination to run for president in 2008, was asked by the Houston GLBT Political Caucus if he would support a “formal written policy of non-discrimination that includes sexual orientation and gender identity or expression … for all Federal contractors. … Obama’s response – according to the survey, a copy of which was provided exclusively toMetro Weekly on condition of anonymity – was one word: “Yes.”

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