Since 2009, this law blog has tracked marriage equality and its attendant same-sex civil rights movement. This movement swept the nation, culminating in a pair of SCOTUS opinions -Obergefell [2015] and Windsor [2013].

As he has done in several past dissents, Justice Scalia puts forth a vehement opposition to same-sex marriage in Obergefell, and since writing his dissent in that case, has spoken formally, openly, and often. His message: there is no textual or historical basis for the majority's ruling that laws and government policies must be gender neutral.

Justice Scalia believes that the thread of same-sex marriage decisions is the most glaring example to date of the SCOTUS doing "whatever it wants". He seems most troubled by the fact that the marital equality decisions are contrary to the religious beliefs of a significant portion of the citizenry. Such decisions are for the elected legislators -not for an un-elected committee of lawyers wearing robes- according to Scalia.

In his recent public comments on the landmark SCOTUS decision, Scalia has radicalized himself, even among conservative legal scholars. Speaking before law students at Georgetown, he equated, perhaps sarcastically, child molesters to homosexuals. To be precise, Scalia said there is no principled basis on which to distinguish the two "minority" groups. The implication is that, like "homosexuals", child molesters will be the next group to seek protected status under the constitution.

Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago, one of the most cited jurists of the 20th Century, -and like Justice Scalia, a legal conservative- takes Scalia to task for his comments in a well-read NYT editorial. In the piece, Posner seems most concerned about Scalia's declaration that post-Obergefell, American democracy is dead.

Judge Posner is also troubled by Scalia's assertion that 9 un-elected lawyers, cloaked in robes, should not be the brain-trust behind such important matters as marital equality or any civil rights struggle for that matter. Judge Posner also uses Scalia's own logic against him, pointing out that Scalia does not hesitate to vote for invalidating state laws or legislation that contravene the First Amendment, or some of his pet federalism-related clauses of the U.S. Constitution.

Finally, Judge Posner takes Scalia's public commentary to its logical conclusion: the abandonment of proper judical review. Posner has a good point here; one of the primary roles of the SCOTUS, at least since the 1803 Marbury v Madison decision, is to conduct rigorous judicial review of the myriad pieces of legislation that the many many legislatures and legislators dream-up.

Over time, legislators of every stripe imaginable are elected into the legislatures of our country; some of whom have been bit with a special kind of fever. We here at the Law Blogger sleep better at night knowing that their work-product must withstand judicial review relative to the U.S. Constitution.

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Post #510

For the past two years, conservative legislators have been proposing a tricky piece of legislation in response to the marriage equality civil rights movement. The First Amendment Defense Act, which has across-the-board Republican support, would, among other things, bar the federal government from taking any discriminatory action against those who oppose same-sex marriage on religious grounds.

For example, if this bill was enacted, someone like Kim Davis could have used it as a shield in her federal court contempt proceedings when she refused to issue a marriage license to same-sex couples. Essentially, this proposed law would negate the anti-discrimination laws that are already on the books and it would use federal tax dollars to do so.

The scope of the proposed legislation would also include protections for private companies. This increases the potential for discrimination against gays and lesbians in the work force.

Although this bill has no real chance of passing Congress -even if it did, President Obama would veto the measure- there are state versions out there already on the books in Indiana and Arkansas. The swift passage of marriage equality in state legislatures across the country, and via the SCOTUS in two recent landmark decisions, does not mean same-sex marriage is now accepted in the traditional households of the nation.

To be sure, there will be struggles ahead for gays and lesbians relative to their new-found marriage equality. We here at the Law Blogger have predicted that the Obergefell decision, while a good start, has merely signaled a new-era where the entrenched opposition to marriage equality will rear its head in the workplaces, schools and governments throughout the land.

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Defiant Clerk Kim Davis

Here's a problem. Just as marriage equality swept the nation, one state at a time over the past few years, culminating in two landmark SCOTUS decisions making marriage equality a constitutional right, at least one county clerk in Kentucky whose responsibility it is to issue marriage certificates, is refusing to do so despite orders from a federal court.

The Rowan County Clerk, Kim Davis, who won the job her mother held for nearly 4-decades by a scant 20-something votes, had this to say about her predicament:

To issue a marriage license which conflicts with God's definition of a marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision.

Two words: just-resign. Preferably before the media eats you alive.

It may be too late for that. Kim Davis is trending all over Twitter and other social media. It is now common knowledge that she has been married four times; the height of irony if you were to ask us here at the Law Blogger, as this court clerk imposes her personal religious judgment on same-sex marriage applicants from her community.

Last week, the U.S. Sixth Circuit Court of Appeals upheld a federal court injunction directing Davis to issue the marriage licenses. Yesterday morning, the SCOTUS denied Davis' last-ditch attempt to further stay the court order in the federal class action lawsuit filed against Davis and Rowan County.

Despite the High Court's order, and with the white hot spotlights of local and national media in her face, Davis refused to issue a marriage license to a same sex couple today. She has been summoned to the federal court Thursday morning to show cause why she should not be held in contempt.

Without a resignation or a heartfelt promise to obey the law, Davis will likely spend Labor Day weekend in a jail cell.

POST SCRIPT:

Well, that one wasn't difficult to predict. The federal judge tried to fashion a compromise resolution -if you can call it that- by asking whether Davis would allow her deputy clerks to execute marriage licenses to same-sex applicants. When the answer was a resounding "no", the federal judge had no choice but to find Davis in contempt. Federal Judge David Bunning selected incarceration over a fine, pointing out that Davis would be able to pay any fine from her supporters' coffers, and remarking that, "the idea of natural law superseding this court's authority would be a dangerous precedent, indeed."

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Since the SCOTUS made marriage equality a fundamental constitutional right in June, a handful of judges in Ohio have refused to perform civil wedding ceremonies. One judge in particular, Toledo Municipal Judge C. Allen McConnell, cited his deeply held personal Christian beliefs when refusing to marry a non-traditional couple.

Another Ohio judge now simply refuses to perform any wedding ceremonies. His position is that by refusing to perform this function of his job, he is at least treating all individuals in the same manner.

This has led to the issuance of a judicial ethics opinion from Ohio's Board of Professional Conduct. In sum, the opinion says that judges must follow the laws when executing their judicial functions and that they must do so impartially, without bias or prejudice, keeping their own personal views out of the process.

The ethics opinion states:

Judges are further advised that personal, moral, or religious beliefs should not be a factor ... and to be aware of the impact that a decision to decline to perform all civil marriages may have on the public’s perception of the judiciary.

This language suggests that simply refusing to perform a sanctioned function, i.e. marriages, is not a solution.

There will be many other instances in the courthouses, schools and workplaces across the country where marriage equality is not accepted by those in charge.  If you have experienced discrimination in this manner, contact our law firm to discuss your options.

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SCOTUS Justices Roberts & Kennedy

Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:

(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 

Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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Legal Scholar Lyle Denniston

Batman will probably show-up again; Spiderman has been crawling the marble steps seeking attention; and various flag-waving, placard-touting groups in support of and opposed to marriage equality have been a fixture along First Street in Washington D.C. over the past several weeks. As June evaporates, the Supreme Court's final day for this session, Monday, fast approaches.

There is a rare sense of growing anticipation surrounding the Supreme Court building as the Court gets ready to announce its last few decisions of the term.  Of all the cases argued before the SCOTUS this term, only 5 remain undecided, including the DeBoer same-sex marriage and adoption consolidated cases.

We here at the Law Blogger think the High Court will issue the decision this morning when their penultimate session begins at 10:00 am.

Lyle Denniston of SCOTUSBlog no doubt already has his analysis at the ready; he's probably just waiting for an opinion to read before posting to his well-read blog. The two issues the Court will likely resolve today in deciding the DeBoer case are: whether states have power to ban same-sex marriages; and whether states must recognize same-sex marriages from other states.

Currently, marriage equality is the law in 36 states. All of the state laws banning same-sex marriage in the remaining 14 states are under constitutional challenge.

When the SCOTUS began its term in October, it did not elect to review any of the then-pending same-sex marriage cases that had percolated through the federal courts of appeal. Then the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order striking down Michigan's state laws banning same-sex adoptions and marriages.

In upholding the state law bans, the Sixth Circuit bucked a national trend among the federal appellate circuits which had until then uniformly ruled in favor of recognizing marriage equality. So the SCOTUS granted certiorari and today is the moment of truth on this constitutional issue.

Once the Court issues its decision, we will review and distill the opinion and provide our readers with our take on this important civil rights issue.

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Justice Anthony Kennedy

Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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