LGBT News U.S. Supreme Court hears arguments on marriage equality

It started out bad for us, but then Kagan interrupted (thank God), and set everything straight. The conservatives were pretty much grilling the first lawyer for the plaintiffs and it wasn't looking too nice. The second lawyer for the plaintiffs did a very nice job, and provided some very nice answers to the justice's questions.


Although, Kennedy and Roberts have shown concern for both arguments. They are known to ask some difficult questions, so it's really hard to tell how it will play out. I read some of the transcript for the first question (will continue reading soon), and it seems iffy.

I'm hoping Kennedy sides with us, but I'm really not counting on Roberts' to side with us. This definitely looks like a 5-4 vote, one way or another.

Well, if they say no, it means that they've affirmed the idea that states should decide their own laws. It means all the federal court rulings against SSM are invalid. (state supreme court rulings would be unaffected)

 

I also feel very 'iffy' about what I read about today's proceedings...it would be horrible to have things go back to the small handful of states that made it legal via votes/initiatives...so, no, there's a lot of people who seem to be feeling 'iffy' right now.

 

I'm optimistic still, if only because a negative ruling would be legal chaos.

 

An interesting summary of the hearing here: What Happened Inside the Supreme Court Today | Advocate.com

I love this little section:

Owned.

I think with Ginsberg, Sotomayor and Breyer talking complete sense, and the other justice sounding quite frankly moronic its a dead cert for America.

Those defending the bans are just tying themselves in knots trying to legitimise what cannot be legitimised.

You cannot on one hand say "marriage is an institution created for procreation" and then concede that procreation isn't a requirement of marriage, and its fine that many heterosexuals marry but don't/can't procreate. Defeats the entire argument.

Likewise stating that same-sex marriage would destroy such an institution...as if marriage has a fantastic track record as it is. Married heterosexuals cheat, run away from their children, get divorced. And that is all without the help of "the gays" destroying marriage.

 

I'm going to laugh at you all when it 4-5s.

Adrienne

 

I think even in the result of a no-vote not everything is lost, it will just mean progress is a little slower. It would be unlikely that those states that have already legalised same-sex marriage would go back - it would be an unpopular move and the states will know from experience that no harm actually comes from same-sex marriage (no plagues or natural disasters!).

I think in the worst case scenario (a no vote) you would still have the domino effect of same sex marriage continuing until you are left with a small handful of dinosaur states. Then they will either concede or eventually there will be another Supreme Court case. It isn't ideal, no, but having a country that is a majority in support of gay marriage that would have a majority of states with it legalised is certainly nothing to sniff at.

---------- Post added 28th Apr 2015 at 01:47 PM ----------

States should define their own laws...but it is up to the federal level to ensure that the constitution is being abided by. If it isn't, the states have overstepped their mark.

Now I know nothing of politics, but even I would have thought that is the basic premise of being in a federation. The states are not independent and so are not entitled to absolute authority over defining their laws. That's the deal. If they would like free reign they would have to try to secede from the US....good luck with that!

 

I hope it does get work in our favor and I do feel very positive about it but if it does not happen the way we want the states that have marriage equality are gonna get more and more crowded than they already are filled with many minorities fleeing parts of country that do not accept them at all. Why do you think the conservative states are very empty and the liberal states are very crowded and if this ruling fails to fall in our favor some places are gonna get over crowded. Because no one is gonna put up with it for long.

 

Not gonna lie, I'm a bit nervous, But I'm also excited.

 

I just finished reading and listening to the arguments for the first question. It seems pretty well balanced in terms of which side is winning. It started out not so well, but then it really picked up after the second plaintiff started speaking. I think the liberal justices made some amazing points against Mr. Bursch. The conservative justices seemed to do a decent job when making points against Ms. Bonauto. I also think Ms. Bonauto's closing argument was pretty spot on. Justice Kennedy asked pretty tricky questions on both sides. (I'm hoping he sees it our way)

I also noticed how Justice Thomas remained completely silent. (at least for the first question)

Yes, I don't disagree with that. However, I am saying that if we lose this case, then there is no more arguing about whether or not states have a right to discriminate against same-sex couples in regards to marriage laws. It's an all or nothing situation. Same-sex marriage in all 50 states might never even happen.

You'll laugh if it's for same-sex marriage or against?

 

Justice Thomas is notorious for almost never asking a question during oral arguments. I think it's been since 2006 since he asked a question, and he made a couple a joke a few years ago.

 

Quite honestly, I think that we'll at least get gay marriages recognized nationwide. Despite what Kennedy was saying at the beginning of oral arguments, based on the way he destroyed the anti-gay marriage lawyers later, I'm cautiously optimistic. Hell, even John Roberts asked if it was sex discrimination that "Sue loves Joe, Sue can marry Joe, but if Tom loves Joe, Tom can't marry Joe."

Honestly, I think we're going to be just fine. Come June,

[youtube]PSKsazkOfcA[/youtube]

 

Reading ThinkProgress' analysis of the day - The Lawyer Defending Discrimination In The Supreme Court May Have Just Talked Himself Out Of Victory | ThinkProgress - Bursch sounds like he had an absolute nightmare.

 

I hate all this discussion about "the institution of marriage...are we really going to re-define marriage after thousands of years." Marriage is perceived as a religious institution and solely a religious institution. Is it so hard to separate the idea of a civil marriage and a religious one? Is anyone trying to force protestants to recognize gay marriage? Or roman-catholics? "Change what the institution is." "Governments have always recognized marriage as one man and one woman" Yeah, thats cause religion has always played way to large a role in politics. People had slaves for thousands of years, was it so bad to change the "institution of slavery" when people realized it was messed up? The world is changing more rapidly now then at any point in human history. Get on board or get run over you old bags. For thousands of years people used fire as light, does that mean we should have shunned the lightbulb? Governments have been ran by a single individual for thousands of years, guess we can't institute democracy. OMG. People have been riding horses since literally the beginning of time how can people be allowed to dump their horses for CARS!

Also, I think originalist arguments are just bullcrap. Why do people think the founders were all-telling all-seeing super geniuses? They come up with a 3/5 compromise for crying out loud. Do we really think that they could predict the future? Cause I'm pretty sure if they knew that M16s would exist they wouldn't have said there is a "right to bear arms." Or if people would be using guns to murder innocent children, they should also be able to purchase as many guns with high magazine clips as they want.

And the only reason marriage ever existed is to secure the passage of property via a male off-spring. The "one man, one woman" idea came from the fact that there was no discernible way to distribute property after death unless it was assumed everyone married one person and only had children with that one person.

And with all due respect Mr. Scalia, if everything should be left "up to the states" and the "democratic process" slavery, segregation, jim crow laws all would have existed long after they should have. Courts are designed to protect the interests of minority groups.

Gay marriage is going to be legal eventually, that is an absolute foregone conclusion by the time the 65+ and olders die out, why be the Court people like back on and say "sorry, you guys had it wrong." Man good things those guys deciding Dred Scott decided the way they did - history shines brightly on them.


end rant.

 

From the devil's advocate, yeah. We fought a war over it among other things. However that was another very dark period in history and I'd like to think we're a more enlightened populace. Maybe that view is accurate if we don't have to resort to killing each other en masse to contest the right to oppress.

 

My gut feeling tells me it will be a favorable outcome. The general population seems to support gay marriage.

 

Oh definitely. Back when it was signed they only had pistols to go off; innacurate weapons that rarely killed unless fired at point-blank range.

Even with pistol duels, despite the image we have from movies where one side drops to the floor dead, fatalities were a rarity. The usual outcome would be the losing side being injured.

So you are right, the writers would probably think twice about including the right to bear arms if they knew what it would develop into today.

Times change.

 

Ugh. Some of these arguments are so easy to refute.

Proper Response: With all due respect Chief Justice, but that is the cultural definition of marriage. This is not about culture, it is about the Constitution and the law, and whether or not the state has a rational basis to deny same sex couples equal protection under the law. We will readily concede that culturally, at least in the eyes of the majority of the public, marriage has historically been viewed as between opposite sex couples. However, culture changes and definitions change with that culture, but the Constitution is the Constitution and the Law is the Law. When the Constitution guarantees equal protection under the law to citizens, it does not single out any specific group as not having that right. Therefore, the state has to demonstrate a rational basis for its discrimination against same sex couples. In our view it does not matter whether the polls are 99% in favor of our position, or at 1% in favor of our position.

Potential Rebuttal: How can you say it is not relevant? The institution of marriage is important to a lot of people.

Proper Response: It is important to a lot of people, including same sex couples. However, the law is not determined by popular support. The First Amendment, for example, protects all speech including hate speech. Someone may say something that is vile and offensive to the overwhelming majority of people, but they still cannot be silenced by the government. The courts would be required to protect that persons right to freedom of speech, in spite of the cultural acceptability of that speech. In our view, equal protection is no different. The people who are the most marginalized in our society, are the individuals most in need of equal protection.

Potential Rebuttal: How can you say same sex couples are marginalized when support is growing for their position every day?

Proper Response: In our view, the current trends on this single issue are not relevant. Popular opinion and culture are fickle, and they can shift back and forth. What is popular today can be unpopular tomorrow. What matters in this circumstance is that there is a history of discrimination against gays and lesbians. That is how we end up here before you today, as the states themselves have shown a willingness to go out of their way to single out gays and lesbians for discrimination when it comes to marriage laws.

Potential Rebuttal: You say that gays and lesbians are singled out for discrimination, but don't the states have the right to define marriage in the traditional sense? Why can't they do that?

Proper Response: It is our belief the state can define its marriage laws however it wishes. Our problem is not with states defining their marriage laws, our problem is that the state is singling out gays and lesbians and excluding them from the right of having a legally recognized marriage. It is our position that the state can only do this if it establishes a rational basis for that discrimination, and if it cannot do that then we believe it is in violation of the equal protection clause of the Constitution.

Proper Response: With all due respect Justice Scalia and Justice Alito none of those societies or cultures you mentioned were governed by the United States Constitution. In our opinion, whether none or all of them would have supported same sex marriage is not really relevant. What is relevant in this case is that the state has failed to demonstrate a rational basis for its discrimination against same sex couples in the case of civil marriage.

Potential Rebuttal: You continue to try and separate culture and the law. How can you do that? That's absurd!

Proper Response: With all due respect, your honor, we will once again reiterate the similar scenario of someone engaged in offensive speech. The speech may be offensive to everyone else in the entire country except the speaker himself, but the court would be required to uphold his right to freedom of speech under the First Amendment. That has nothing to do with popularity or culture, and everything to do with the Constitution and the Law. It is our position that the equal protection clause of the Constitution is the same, and in order to single out a specific group for discrimination the state must demonstrate a rational basis for its discrimination.

==================

The "culture" argument seemed to be the crux of the concern. The above approach should have been taken, and it should have been hammered again and again. Every time it came up, the lawyers should have redirected the justices back to the issue at hand: the discrimination by the state and the equal protection guarantee in the Constitution, and the states failure to demonstrate a rational basis for that discrimination.

Just flat out concede the point that, yes, culturally we are "expanding" (don't let them use the word "redefining") the definition of marriage. But then bring them back to the point that this is not about culture, nor is it about what is currently popular or not (something the opposition in the case would agree with because they are losing in public opinion), it is about the law and the Constitution.

That point should have been hammered again and again and again, and every time a justice wanted to veer off topic, they should have been guided right back to the issue at hand. Throw in lots of discussion about human dignity for Kennedy, and then call it a day. You've won the case, made the best argument that you could make, and persuaded anyone on the Court who could have been persuaded.

==================

As I listen to the arguments, I grow more and more pissed. Even if you wanted to argue on the basis of culture it is easy to do.

Primary Argument: For millennia marriage has been defined as a union between a man and a woman. This has been true across all cultures. How can you ask this court to redefine marriage?

Proper Response: It is very difficult to quantify marriage across so many different cultures. Marriage across all those cultures may have existed for millennia, but so have same sex couples. They have been entering into unions since humans roamed the African Savannah. Homosexuality is not a recent phenomenon. While it is true that many cultures frowned on same sex marriage, it is also true that many cultures embraced same sex relationships. Right here on our own continent there were some Native American Tribes who recognized same sex couples. The problem with quantifying same sex relationships across time is that different cultures held different views of homosexuality, and it is only since 1869 that our modern understanding of homosexuality and sexual orientation in general started to develop. Prior to this point in history many cultures, though not all, viewed sexuality through the lens of sexual acts rather than sexual orientation.

Potential Rebuttal: I want to touch on something you said in your response, you mentioned that not all cultures viewed homosexuality the same. Is it not true that Ancient Greece viewed homosexuality in a positive light? Is it not true that they did not have same sex marriage? How can it be discrimination if that is the case?

Proper Response: With all due respect your honor, this is exactly what we mean by taking our modern understanding of homosexuality and trying to compare it to other cultures -- especially ancient ones. What you are referring to in your question in regards to Ancient Greece is the practice known as pederasty. That was a cultural practice that was linked with local religious customs, and has no comparison to homosexuality. Pederastic relationships were between adult men and young boys, it had a great deal to do with apprenticeship, those relationships traditionally ended when the boys entered adulthood, and many of those who engaged in the practice would be people that we would traditionally view as heterosexual today by our cultural standards. As I said previously, it was a cultural and religious practice, and had nothing to do with sexual orientation.

Potential Rebuttal: But isn't it true, at least in more modern times in the Western World, that marriage has been defined as being between only a man and a woman? Even if we ignore everything else, this is still the case.

Proper Response: Yes, but if we want to understand the cultural roots of marriage we have to go back to its original intent. The original intent of marriage was a contract to protect property rights within the family. Marriage still carries the legal legacy of property and contractual rights, which is why same sex couples want access to the institution.

Potential Rebuttal: I am still not following. What do property and contractual rights have to do with the definition of marriage being between a man and a woman?

Proper Response: In Western culture women were, for the bulk of our history, considered the property of men--first their fathers, and then later their husbands. Most marriages were arranged marriages. Under that system, we concede that it makes little sense to allow same sex couples access to the institution of marriage. After all, such marriages have nothing to do with consent, love, or any other egalitarian notions we culturally associate with marriage today. If the Court wishes to pin point a time when the definition of marriage changed in our culture, it would be when it became more egalitarian. It was only after that happened that same sex marriage made sense.

However, we wish to note for the record that even though the cultural systems relied upon arranged marriages, and did not take same sex couples into account they still existed. They simply existed mostly in secret.

Potential Rebuttal: If they existed in secret, how do you know they existed?

Proper Response: Because of the discriminatory laws that were created, your honor. The Sodomy Laws that the Court struck down in 2003 are evidence that they existed, and were discriminated against by the state. It is this, along with many other actions, that prove a long history of discrimination against gays and lesbians.

...

...and on and on and on it could go. I am really disappointed in the lawyer representing our side, Mary L. Bonauto. While I have not listened to it all (yet), she often sounded nervous, unsure of herself, missed opportunity after opportunity to make key points, and basically had to be rescued multiple times by the liberal justices. She should have been more prepared to stand her ground, and make a more forceful argument than she did. Every one of the questions I have heard so far, either by listening to the audio, or reading it in print were predictable and boiler plate questions. They were practically throwing her softballs.

 

Oh Please.....
An easy 7+ / 2- if not 8+/1-.
But I still firmly predict 9+ in favor.

Here is the only deciding issue.
Should a SS marriage from one state be recognized by another?
That current injustice is not one shared within heterosexual marriages.
And that concern shall decide the case.
And that is why I predict a full unanimous 9 judge ruling.
Sure, Scalia must ask the hard questions. That is his job after all.
But does Scalia actually believe what he is arguing against? No.
Scalia has already admitted that loss after the DOMA battle.
This is one case with what the justices ask or issues address will have nothing to do with their final decision.
Poker face.
And thus, the unanimous decision.
Yep! Unanimous. All nine justices. Every one.

 

Alright, I just got all the way through Mary L. Bonauto's part of the hearing. That's roughly the first 30 minutes. She was pretty bad all around. There were only a handful of questions that were tossed at her that were somewhat difficult to answer. I'll paraphrase them here.


Primary Argument: The issue before the court is not whether there should be same sex marriage, but who should decide the point. You're asking us to decide for this society, when no other society until 2001 even had it. How many states have voted to have same sex marriage, either through their legislature or by referendum? Why should we close off the democratic process? That sort of quick change has been a fundamental question in this debate, but if you prevail here, there will be no more debate. Closing the debate can close minds, and it will have consequences on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts.

Proper Response: Your honor, it has never been the case that popular democratic opinion shaped civil rights in our country. In the United States we don't hold a vote on whether or not it is acceptable to deny people their Constitutional Rights. We are making the argument that under the equal protection clause of the United States Constitution, that gay and lesbian couples are being denied equal protection under the law. This is not the role of legislatures and voters, this is the role of the courts.

Primary Argument: You are asking nine people outside of the ballot box to change what has been the law everywhere for thousands of years. You want to force states that don't want to do it to be forced to change their laws. Why can't States at least wait and see whether in fact doing so in the other states is or is not harmful to marriage? Why can't we wait to see how all this plays out before we take action?

Proper Response: Your honor, we are asking the Court to rule on the Constitution and the Law. How long an institution has been in place is not relevant if it is in violation of the Constitution, and States are beholden to the Federal Constitution. As for the question of whether or not the Court should wait, the question would then be how long can the Court wait as gays and lesbians are denied their Constitutional Rights? It is our position that every single day that the Court waits grievous injury is done to gays and lesbians, and the Court should settle the matter with all haste. What will we tell elderly gay couples who are waiting to have their marriages recognized, if one of their spouses should die before the Court decides? What should we tell couples in which one of them is terminally ill? What should we tell couples who are being denied health insurance because they cannot get on their spouses health plan? What should we tell these people? Every single day the court delays grievous injury is done. Any indirect harm that could be theoretically done to society, and we do not believe any harm is done, pales in comparison to the direct harm done to gay couples denied equality under the law.

Primary Argument: Suppose we rule in your favor, and a group consisting of two men and two women apply for a marriage license. Would there be any grounds for denying them? Let's also assume that the relationship is entirely consensual, and in no way harmful to the individuals involved or their families. In fact, it may even be beneficial and a good thing. What would be the grounds to reject them under the logic of the decision you'd like us to hand down in this case? What would be the logic of denying them the same right. After all, marriage between two people of the same sex is not something we've had before, and if we recognize one substantial break, why not another?

Proper Response: Your honor, it is unfair to place the burden onto gay and lesbian couples to refute an argument that they are not making. We are not here to argue whether or not marriage between more than two individuals should be legal. There is no substantial reason why one group should have their rights denied to them, because it could in theory open the door to another group. By this logic the Loving decision was ill conceived, because it opened the door to us standing before the Court today. If this is an issue caused by allowing same sex marriage, then it will have to be an issue the Court tackles in the future, but it should have no baring on whether or not same sex couples should be denied their rights because of what may or may not theoretically happen.

Potential Rebuttal: So you admit that multiple person marriages would have to be allowed if we rule in your favor?

Proper Response: No, your honor. We make no such claims. Our claim is that it is a separate issue entirely, and should the Court believe that may be a consequence of their ruling it should have no baring on whether or not same sex couples deserve equal dignity under the law. One persons Constitutional Rights does not hinge on whether or not another person might potentially benefit in some way.

Primary Argument: I'm concerned about the wisdom of this Court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their views about marriage. Were the States to adopt it by law, they could make exceptions to what is required for same sex marriage, and who has to honor it and so forth. However, once it's made a matter of constitutional law, those exceptions disappear. For example, is it possible for a minister who is authorized by the state to conduct marriage to decline to marry two men if this Court holds that they have a constitutional right to marry? After all, a minister is, to the extent he's conducting a civil marriage, he's an instrument of the State. I don't see how you could possibly allow that minister to refuse to marry a same sex couple. This means that you could have some ministers who conduct real marriages that are civilly enforceable, but other ministers who cannot be given the State power to make real State marriage. I don't see any way around this problem. I really don't.

Proper Response: Your honor, I think you already found the answer to your problem. You mentioned State and Civil marriage multiple times. The state draws a distinction between civil marriage and religious marriage. This has always been the case, which is why religious arguments are moot in this debate. We believe that the First Amendment protects the ministers right to conduct marriages as he sees fit. However, even if the issue you outline were to arise from same sex marriage, our position is that it is already a problem that exists within the system. When it came to interracial marriage much of the opposition was religious in nature. People held a fundamental view that the races shouldn't mix, and that it was not what their God intended. Yet, the Court still held that there was a right to interracial marriage.

Potential Rebuttal: Yes, but the opposition to same sex marriage is so much more divisive. It's a fundamental redefinition of marriage, and it is something that many religious institutions will never grow to accept. I believe that the Court, should it rule in your favor, would have to hold that they would have to perform same sex marriages if they are granted power by the state.

Proper Response: We disagree, but even if that were the case it does not provide a substantial burden to the minister or people of faith. Nothing would prevent them from having a religious marriage in their temple, shrine, or church, and then going to the Clerk's office to get their marriage recognized civilly. This is, at worst, a minor inconvenience. Denying same sex couples the right to marry has far worse implications, and creates substantially more harm that goes far beyond minor inconvenience.

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It was insanely frustrating to listen to her against the conservative justices. She had to have practiced many, many, many times before stepping up there. She just seemed so horribly unprepared for even the basic questions.

The only two really tough questions she got was the one about polygamy and the one about making same sex marriage a constitutional right. I believe that if the court does find a constitutional right to same sex marriage under equal protection, that it would have to do the same for multi-person marriages. But forcing us to argue against that point makes no sense, as I pointed out. It needed to be addressed directly, and honestly, but not in such a way that it was allowed to become the central focus. Then there was the question about the ministers--Scalia actually made a decent point there. However, as I pointed out, it's not a huge problem.

It just seemed like she wanted to duck and dodge every question. It felt like she came prepared to say one thing, but was taken completely off guard by their line of (VERY PREDICTABLE) questioning that she just faltered completely. I guess part of it is just being nervous about arguing such an important case before the Supreme Court. However, she has had tons of time to get prepared. She should have been able to take all of these arguments in her sleep.