Sunday, June 30, 2013

Last-Ditch Motion To Stop CA Marriage Equality Denied By SCOTUS

A desperate (and frankly frivolous) motion to (again) stop same-sex couples from marrying in California and resuscitate Proposition 8 that was filed by the heterosexual supremacists at on Saturday was denied without comment by Justice Anthony Kennedy a little after noon on Sunday. Kennedy, who wrote the 5-4 majority in the pro-gay marriage decision striking down Section 3 of the Defense of Marriage Act United States v. Windsor was actually in the minority of Justices in the 5-4 Hollingsworth v. Perry  majority deciding the fate of Proposition 8. Perry effectively ended California's state constitutional same-sex marriage ban from 2008 by denying the Proposition 8 proponents legal standing to continue their appeal of Vaughn Walker's 2010 ruling declaring the measure violated  the federal constitution.

SCOTUS blog reports the delightful news of the final nail being hammered in Proposition 8's coffin:
Last Wednesday, the Supreme Court had ruled that the measure’s backers did not have a legal right to defend the measure in either the Supreme Court or, earlier, in the Ninth Circuit Court. While the Supreme Court considered that case, the 2010 decision by a federal judge in San Francisco striking down “Proposition 8″ had been on hold. It was that hold (or “stay”) that the three-judge Circuit Court panel lifted on Friday. Very soon after that, gay and lesbian couples started getting married in ceremonies across the state. Thousands of such couples have now obtained marriage licenses from officials in the state.
Since Justice Kennedy offered no explanation for denying an application claiming that the Ninth Circuit panel had no authority to lift its stay, there is no way to know what legal rationale he had used. It could have been that the sponsors of the measure lacked a legal right to pursue their challenge further, that even if they had such a right it was without legal merit, that the lower court did have the authority to decide for itself when to lift the stay, or perhaps that events had just moved too rapidly in the wake of the Supreme Court ruling that it would be inappropriate to try to roll them back.
Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. California is the thirteenth state where same-sex marriages can occur now, or soon, when new laws in a few of the states take effect this summer. The District of Columbia also allows such marriages.
The Hollingsworth v. Perry case (which began as Perry v. Schwarznegger)  is finally over. Proposition 8 is dead. The bittersweet feeling from election night on 2008 (Obama wins! Marriage Equality loses!) is now dissipated. The kultukampf is finished in California and the forces of "equal justice under law" have won this battle.

 But the culture war goes on in the country because there are 37 states which do not have marriage equality, and the vast majority of those states (exactly thirty, according to Wikipedia)  have explicit state constitutional bans on recognizing or enacting same-sex civil marriages. New Mexico and New Jersey are the only two states, I believe, that have neither laws or constitutional amendments banning same-sex marriages. I guess there must be five states which only have statutes banning same-sex marriages (according to Freedom to Marry, these five are Illlinois, Pennsylvania, Indiana, West Virginia and Wyoming).

In fact, New Jersey currently has a civil unions law, and Lambda Legal announced it is refiling a case there, opening up the famous Lewis v Harris New Jersey State Supreme course case which ruled that the legislature had to offer all the same rights and benefits to same-sex couples as it does to different-sex couples. With the addition of federal benefits to same-sex married couples, no state that purports to claim that a civil union meet the Lewis v. Harris (and 1999's Baker v. Vermont) standard has a legal leg to stand on.

In New Mexico, which also does not have any law banning same-sex marriages, the question of whether county clerks have the right to issue marriage licenses to same-sex couples is being asked directly of the state Supreme Court. The Court has not decided whether it will take the case, and the state Legislature has repeatedly refused to pass legislation enacting marriage equality of even domestic partnerships.

And of course, in 29 states you can be fired (without a state-based legal recourse) if your employer merely thinks that you might be gay, lesbian or bisexual. The Employment Non-Discrimination Act would make it illegal as a measure of federal law for that to be the case.

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