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The Price of Snark: Thank you, Justice Antonin Scalia!

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The domino effect …

From Justice Antonin Scalia’s DOMA dissent:

“As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

How easy, how inevitable, indeed. And disdainful eye-rolling by Justice Scalia becomes precedent for district court judges across the country.

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Federal Judge: Virginia Gay Marriage Unconstitutional

A federal judge ruled Thursday that Virginia’s ban on same-sex marriage is unconstitutional, making it the first state in the South to have its voter-approved prohibition overturned.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia will still not be able to marry until the case is ultimately resolved. Both sides believe the case won’t be settled until the Supreme Court decides to hear it or one like it.

Allen’s ruling makes Virginia the second state in the South to issue a ruling recognizing the legality of gay marriages.

“Through its decision today, the court has upheld the principles of equality upon which this nation was founded,” the plaintiffs’ lead co-counsel, Theodore B. Olson, said in a statement.

The Virginia Attorney General’s Office took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.

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Kentucky Judge Turns Gay Marriage Tide in the South

On Wednesday, a federal judge with deep ties to the Republican Party became the first in the South to rule in favor of gay marriage, offering the best proof yet that the balance in the nation’s long and contentious clash over how to define marriage has been tipped irrevocably in favor of gay rights.

The brief but remarkable ruling by U.S. District Judge John G. Heyburn, a former lawyer for Kentucky Senator Mitch McConnell who was put on the bench 22 years ago by President George H.W. Bush, invalidates a key part of Kentucky’s ban on gay marriage, and requires the state to recognize as valid same-sex unions sealed elsewhere.[…]

Borrowing heavily from Kennedy’s reasoning in last year’s decision, and in plain language aimed directly at the many voters in Kentucky who still oppose gay marriage, Heyburn found gay marriage laws are illegal for the simplest of reasons. At worst, he ruled, they are aimed at hurting gays and at best, are based on religious convictions that can’t pass constitutional muster.

“Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them,” wrote Heyburn. Since none of the reasons put forward to justify that treatment can withstand constitutional scrutiny, he ruled that the laws are invalid.

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More …

5 States That Could Legalize Same-Sex Marriage

– Oregon: This November, voters in Oregon will have the opportunity to legalize same-sex marriage, making their state the 18th in the nation to do so.

– Ohio: The question of marriage equality will probably make it to the ballot in Ohio –  where a 2013 Quinnipiac poll showed a majority of voters have come to support legalization – in 2016. But LGBT groups are hoping they can advance the issue by 2014.

– Michigan: At the end of 2013, Vote Equal – formerly known as Marriage Michigan PAC – announced it would collect over 300,000 signatures and raise millions of dollars to put same-sex marriage on Michigan’s ballot by 2016.

– Nevada: The decision to drop the defense of the ban does not legalize same-sex marriage in the state, but it does open the door for doing so in the coming years. And with 57 percent of Nevada voters voicing their opposition to the ban prior to Masto’s decision, it seems the state is poised to advance marriage equality if the issue ends up on the ballot in 2016.

The 5th state was Virginia: “On February 4, Virginia’s ban on same-sex marriage was challenged in a federal court. The court is expected to make a decision soon”. Soon? How about 9 days?

Currently, 16 states allow same-sex marriages to take place. Along with the 5 states where the district courts have ruled in favor of marriage equality (and which are under review, or will soon be under review, in the appeals courts) litigation is pending in 22 states at the district court level: Freedom to Marry – Litigation.

And one state runs counter to the trend, trying to set those dominoes back up on their edges:

Indiana Marriage Amendment Proposal Will Not Be On 2014 Ballot

A proposed constitutional ban on marriage for same-sex couples in Indiana will not appear on the November 2014 ballot.

House Joint Resolution 3 was called for a second-reading before the GOP-controlled Indiana Senate Thursday, but amendments to put the measure back on track for being decided by voters this November were not presented on floor. Now, the soonest it can appear on the Indiana ballot is 2016, according to Freedom Indiana.

Even Indiana can’t muster enough “bare … desire to harm same-sex couples” to get this on the ballot this year. 2016 will probably be too late.

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/ 24 Comments

24 comments

  2. Diana in NoVa

    Thanks for this diary. Do you mean to say that Scaly, the Supreme who’s the biggest troglodyte on the court, said:

    DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages.

    And here I still haven’t recovered from the fact that Ted Olson, the conservative Ted Olson, is on the right side of history with regard to marriage equality and argued on its behalf in the California case.

    (Deep breath) Well, I’m blowed! And I’m ecstatic that our new, Democratic Attorney General of Virginia, Mark Herring, is already making his “mark” on Virginia history by refusing to defend Virginia’s ban on marriage equality. One day–one sweet day–we’ll have marriage equality in Virginia. H’mm–perhaps the gay Witches in my short story who had to leave Virginia, marry in Washington, DC, and settle in Maryland will be able to move back. 😉

    Truly, the times they are a’changin’–and not a moment too soon, either.

  4. JanF

    From [the opinion http://www.scribd.com/doc/2071… (Scribd):

           In Windsor, our Constitution was invoked to protect the individual rights of gay and lesbian citizens,and the propriety of such protection led to upholding state law against conflicting federal law. The propriety of invoking such protection remains compelling when faced with the task of evaluating the constitutionality of state laws. This propriety is described eloquently in a dissenting opinion authored by the Honorable Antonin Scalia:

    As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status

    (Bolding is mine)

    Ha!! I couldn’t resist blockquoting it again.

  6. JanF

    Someone there needs to read the constitution and all the amendments, not just the one’s they like.

    Apparently the state senate has more literate members than the House: Kan. Senate Leader: Anti-Gay Marriage Bill Won’t Pass

    Senate President Susan Wagle said the bill, which was approved Wednesday in the Kansas House, goes beyond protecting religious freedom. She raised concerns about discrimination and how it could impact businesses that would refuse services to gay couples.

    “I believe the intent of the House was to protect religious liberties. We respect that, but the business implications are going to harm the practice of employment in Kansas,” said Wagle, a Wichita Republican.

    The measure would prohibit government sanctions or lawsuits over faith-based refusals to recognize same-sex unions or to provide goods, services, accommodations or employment benefits to couples.

    The bill would hurt businesses:

    “It actually overturns our current laws that represent at-will employment, in that an employer can hire and fire any individual for any reason. The business community is just tremendously concerned about how this will affect the employer-employee relationship,” Wagle said.

    She cited the bill’s stipulation that if an employee refuses service to a same-sex couple, the employer must provide another employee to perform the service. She said that would increase the cost of doing business.

    Kansas is not just wheat fields. It shares a major metropolitan area with Kansas City Missouri. And while Missouri is not much more enlightened than Kansas, that metro area has high-tech businesses and retail establishments who employ and serve the gay community.  

  8. JanF

    I had read the story and the video is worth watching.

    A friend pointed me to a video where he appeared on The Ellen Show (I think that’s a TV show?) and he said that the response to his editorial comment was overwhelmingly positive.

    This part of his commentary struck me because the Lawrence Phillips case (the hair-dragging incident) was particularly heinous  … it is everything that is wrong with college sports that Coach Tom Osborne* of Nebraska decided that sports was more important than human life:

    “You beat a woman and drag her down a flight of stairs, pulling her hair out by the roots? You’re the fourth guy taken in the NFL draft,” he said. “You kill people while driving drunk? That guy’s welcome. Players caught in hotel rooms with illegal drugs and prostitutes? We know they’re welcome. Players accused of rape and pay the woman to go away? You lie to police trying to cover up a murder? We’re comfortable with that.”

    You have to wonder if Phillips’ lack of success in the NFL, and really, in life, was the direct result of his enablers using his football talent for their own glory and not giving him the real education he needed: learning that actions have consequences and that you must take responsibility for your misdeeds.

    *You will not be shocked that Tom Osborne is a Republican who went on to become Rep. Tom Osborne and as a Congressman insisted on “personal responsibility” for people who aren’t playing football on his team.

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