Tearing Down the Walls Against Love, a Same-sex Marriage Update


James Hanley

James Hanley is a two-bit college professor who'd rather be canoeing.

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41 Responses

  1. Avatar North says:

    It must be petty, incredibly petty for me, but I do wonder sometimes is Maggie or her ilk ever sit watching the logs and stones of their damn against SSM torrenting down around them and ask themselves “maybe we should have just let them have civil unions back in Vermont?” It’s schadenfreude of the worst order but then I remember arguing in the marriagedebate forums that the whole edifice was going to collapse and even I am astonished at how swiftly it’s proceeding.Report

    • Avatar wayne in reply to North says:

      ….likely she was too distracted by her cheeseburger……Report

    • Avatar scott the mediocre in reply to North says:

      I have to agree in “Maggie’s” case. There are (a few) SSM opponents who seem to be both not animated by animus and somewhat humble, but she certainly fails the latter and I think the former as well.
      She can and no doubt will continue to damn* SSM, but as long as she and her ilk are swept away in the great molasses flood …
      *Was that just a great typo, or great cleverness plausibly deniable as a typo? Hard to tell …Report

  2. Avatar Kim says:

    I’m looking forward to PA’s ruling. Whichever way that judge rules, he’ll be a fun read.Report

  3. Avatar NewDealer says:

    Looks like we made similar posts but from completely different angles. I am looking at the right-wing reaction to these victories.Report

  4. Avatar Burt Likko says:

    As of June 1 of this year (only about sixteen weeks away) seventeen states (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington) and the District of Columbia recognize SSM.

    But in the wake of Windsor, SSM litigation is the judicial sensation that’s sweeping the nation. Justice Scalia sourly predicted as much in his dissent in Windsor but I’m thrilled that his prediction has been vindicated. I know of direct challenges pending in Federal courts to SSM bans in Arizona (a 9th Circuit state), Arkansas, Colorado, Florida, Idaho (a 9th Circuit state), Kansas, Kentucky (discussed above), Louisiana, Michigan, Mississippi, Missouri, Montana (a 9th Circuit state), Nevada (a 9th Circuit state), North Carolina, Oklahoma (discussed above), Oregon (a 9th Circuit case), Pennsylvania, South Carolina, Tennessee, Texas, Utah (discussed above), Virginia (discussed above), West Virginia, and Wisconsin.

    Ohio’s case was mooted, sadly, when one of the plaintiffs died. The only relief obtained in Ohio has been Ohio state recognition of an out-of-state SSM license on a death certificate. I don’t know if a new case is pending in Ohio yet.

    While no case is over until it’s over, and much depends on the judges, it is reasonable cause for optimism to note that after SCOTUS’ ruling in Windsor, every court to reach the merits of a constitutional challenge to a state-level SSM ban has struck it down. If this trend continues, the only states that will not recognize SSM will be Alabama, Georgia, Indiana, Nebraska, North Dakota, South Dakota, and Wyoming. And maybe not even them, because there might be litigation that I don’t know of and Indiana, as described in the OP, appears to be in some political and legal flux on the issue as we speak.

    I suspect history will look back on this issue and see the Windsor decision as the tipping point.Report

    • Avatar James Hanley in reply to Burt Likko says:


      I had the same thought as Scalia when I read the Windsor decision. When I read his dissent it was like looking in a bizarro world mirror; I recognized the same thought, and liked having my reading validated by a SC justice, but it was a weird feeling to see my thought expressed negatively instead of positively.

      It’s been reported that each of these recent District Court decisions has explicitly cited that part of Scalia’s dissent. I find that delicious. A man of his supreme arrogance has to love being cited, and in a way that demonstrates how correct he was, but at the same time has to suffer the sting that his argument is being used against his preferred outcome on an issue where he’s demonstrated so much personal commitment. “Bittersweet” hardly seems strong enough to capture what he must feel.Report

      • Avatar Mike Schilling in reply to James Hanley says:

        This proves I’m not a lawyer. I don’t see any logical connection between

        Marriage is a state issue, and the federal government must recognize marriages that are valid in the state where the married parties reside.


        Each state must recognize marriages that were performed in other states.

        much less

        These are uniform requirements each state must follow to determine eligibility for marriage.

        Don’t get me wrong. I think it’s great, I just don’t see how it follows from Windsor. Nor how a judge can cite one of Scalia’s overwrought dissents as a precedent. (Thought I’d giggle if he were cited to overturn a law against, say, masturbation.)Report

      • Statements 1 and 2 are reconciled by a particular reading of the Full Faith and Credit Clause. Statement 3 is ultimately inconsistent with Statement 2, and it sits alongside Statement 1 only very uncomfortably.

        I don’t know if that helps, and I don’t think you particularly need to be a lawyer here.Report

      • Avatar Mike Schilling in reply to James Hanley says:

        It helps some, but I still don’t see how Windsor, which is about 1, is used to overturn state laws against SSM, which requires 3.

        I do see how placing marriage under FFC takes you from 1 to 2, but AFAIK that’s not the law. Certainly the Lovings weren’t able to marry in another state and then be married legally in Virginia.Report

      • Avatar James Hanley in reply to James Hanley says:

        This proves I’m not a lawyer.

        Not really. It allows for the possibility that you’re a bad lawyer.

        But I suppose a humorless guy like you would like a serious answer, so…

        1. Romer v. Evans was about the right to political participation.

        2. Lawrence v. Texas was, curiously enough, sort of a reproductive freedom case (it drew from the line of precedents based on Griswold v. Connecticut).

        3. Windsor brought in equal protection, and the application of EP at the state level results in striking down SSM bans (and as Burt rightly notes, so far without exception, and by both Dem and Rep appointed judges, which is a fair indicator of just how powerful was the Court’s use of EP…just as Scalia predicted).Report

      • Now I see your intellectual difficulty. Statement 3 is kind of like, but not exactly, the argument used to overturn SSM in this new spate of cases.

        It may be helpful to look at the Ninth Circuit case the good Professor references. On January 21, 2014, the Ninth Circuit announced its decision in Smithkline Beecham Corporation v. Abbott Laboratories, holding that a review of the exercise of a peremptory challenge on a perceived-to-be-gay juror should be analyzed under “heightened scrutiny,” meaning something more searching than the standard of “If there is a conceivable reason for a governmental action, it’s okay.” It did so quoting directly from language in Windsor searching for some actual (not hypothetical) rational basis for DOMA. I kind of feel bad for the lawyers in that case; these were BigLaw attorneys who wanted to argue about patents and intellectual property and drugs and the other sorts of things that give BigLaw lawyers pup tents in their gabardines. Gay rights was nowhere on their radar when they went to trial here. But that’s what they wound up having to address, because of a “gut instinct” maneuver by one trial counsel that the trial judge didn’t immediately pounce on because the whole process of using peremptory challenges is inherently instinct-driven. So the whole case got sidetracked for a year and a half while this Constitutional issue got ironed out by attorneys who were only ever concerned with That Which Makes The World Go Round.

        Since this “rational basis plus” standard was announced in Windsor, same-sex marriage bans have fallen like dominoes. So it’s not “These are uniform requirements each state must follow to determine eligibility for marriage.” It’s “States must have some actual, not hypothetical, good reason for whatever eligibility criteria they create for marriage.” And no state has been able to come up with an actual good reason.

        The closest any state has been able to come is Prof. Hanley’s home state of Indiana, whose Supreme Court issued the now-infamous “shotgun wedding justification” in a case called Morrison v. Sadler. The argument comes down to: “Sometimes when unmarried heterosexual have sex, conception results; having the special status of marriage reserved for heterosexuals will encourage those heterosexuals who inadvertently conceive to subsequently marry and raise their children together.” I never bought the argument, not even for a moment, but that met the old, deferential “an attorney stood in front of us and said it with a straight face” standard otherwise known as “the giggle test.”

        For the Morrison version of the “procreation argument” to survive the “rational basis plus” test applied in Windsor, a state would need to prove that in reality a substantial number of heterosexual couples who inadvertently conceive then go on to marry.Report

      • Avatar Mike Schilling in reply to James Hanley says:

        Thanks, this was really helpful.Report

      • Avatar Stillwater in reply to James Hanley says:

        Nor how a judge can cite one of Scalia’s overwrought dissents as a precedent.

        Those judges aren’t citing it as precedent, or they? (It’s a dissenting opinion). I think they’re referencing it because it’s a crystal clear articulation of the logical consequences flowing from Windsor, something Scalia was irritated by, both on the substance but also because he thought the majority was being willfully ignorant about those consequences. (“Gutless bastards” I think he called em.)Report

      • Actually, the sarcasm is more biting than that. A section of Scalia’s dissent illustrates the ease with which the Windsor opinion could be used to strike down a state’s SSM ban — using the editorial device of strikethrough font. Scalia excerpted a couple of the majority’s sentences and replaced “the state law” for DOMA, etc.

        Particularly striking in the Kentucky case is how closely the judge’s opinion tracks Scalia’s edited language — as though it were intentionally copied. It’s a snark from the district judge to Scalia, as though to say “You say that like it’s a bad thing.” When one of these ban cases gets back before SCOTUS, for inevitably one will, I’m sure we will be treated to another spout of acid.Report

      • Avatar Stillwater in reply to James Hanley says:

        It’s a snark from the district judge to Scalia, as though to say “You say that like it’s a bad thing.”

        It’s akin to an anti-abolition argument suggesting that ending the practice will result in black people getting the vote. What’s intended to be an obvious reductio on the incoherence of the premise reveals itself as merely absurd.Report

      • Avatar James Hanley in reply to James Hanley says:

        how closely the judge’s opinion tracks Scalia’s edited language — as though it were intentionally copied. It’s a snark from the district judge to Scalia,

        That’s my read as well. I wonder if Scalia gave any thought to how easy it would be to use his words that way? He strikes me as a remarkably un-strategic jurist, more interested in the biting attack than in looking to create judicial allies, and here what he seems to have thought was a meaningful critique was in fact spoon-feeding to district/circuit judges the language that leads to his final defeat on the issue. It’s almost in Poe’s Law territory.Report

    • Avatar Burt Likko in reply to Burt Likko says:

      Alsotoo I found a case pending in Alaska, another 9th Circuit state.

      As for Antonin Scalia’s feelings on the issue, “resigned” may be a better way to describe it. I see his overall style and I wonder if he’s not getting a little bit of Brennan-itis: towards the end of his term of service, Justice Brennan was known to ask potential new law clerks in interviews how they would interpret the Constitution. The ones who quoted his own opinions back to him, he was not as interested in. The ones who said they would apply “the rule of five” won — they’d use whatever language they needed to in order to get at least five votes for the result. Chief Justice Rehnquist, also, suffered this sort of intellectual fatigue towards the end of his service.

      Scalia must feel, particularly on this issue, that he’s kind of spitting into the wind by now: he’s keen on following politics and must know that the chances he will be replaced with a Republican successor are growing dimmer by the day. He also can’t count on votes from Kennedy and the Chief reliably, and can reliably count on opposing votes on the big issues from Ginsburg, Breyer, Kagan, and Sotomayor, so his arguments are aimed at Roberts (when he points to precedent as holy writ) and Kennedy (when he points to moralism as the motive spirit underlying law) in an attempt to woo the fourth and fifth votes. Surely he knew from the start that he could never get Kennedy’s vote on Windsor, so he didn’t even try.Report

    • Avatar Alan Scott in reply to Burt Likko says:

      Whuzzuh? Why is Ohio’s case mooted once the plaintiff died? I thought the whole point of the case was to get the state to acknowledge his husband for the purpose of the Death Certificate, which the state did. Wouldn’t it just count as a completed case?Report

      • Avatar Alan Scott in reply to Alan Scott says:

        also, @burt-likko , do you have any thoughts on the situation with the sorta-married couples in Utah? Will the courts get involved and decide one way or the other how the couples should be treated as the case progresses? Or will they be content to let The Feds recognize a Utah-granted Marriage that Utah doesn’t?Report

      • Avatar Burt Likko in reply to Alan Scott says:

        Re: Ohio. The complaint asks the state to recognize the (Maryland, IIRC) marriage license. The court granted emergency relief for the death certificate issue. So only partial relief was granted — the license was recognized for purposes of the death certificate only.

        Re: Utah. The state will insist on pushing the case all the way to SCOTUS to defend its marriage ban. Where it will lose, and then SSM will be a national right. Then those couples will be married at both the state and Federal levels, and this chapter of the history of the expansion of individual rights in the USA will end in a triumph.Report

      • Avatar James Hanley in reply to Alan Scott says:

        I wonder if the officials in Utah recognize the odds against their case?

        And if they recognize the odds, I wonder how much they really personally care to pursue the case, and how much they’re just playing to their constituency?

        And I also wonder what it’s like to be counsel preparing their appeal, knowing that every argument used so far has been eviscerated and rejected by a growing multitude of federal courts?Report

      • Avatar NewDealer in reply to Alan Scott says:


        One thing that occurs to me and others is that fights against same-sex marriage are a kind of win-win for right-wing politicians. The smartest among them most realize that they are on a losing fight and laws like the Kansas one are blatantly unconstitutional.

        However, it is still good politics to fight tooth and nail because:

        1. The social conservative base laps up the red meat.

        2. When the courts do rule that these laws are unconstitutional, you get to complain to the base about those horrible activist judges and get more campaign funding.

        Now the smart politicians can believe in the laws they are passing and also see the financial benefits. I am fully open to the full-range of unsavory possibilities.Report

      • Avatar James Hanley in reply to Alan Scott says:

        Ummm, red meat, {gargling Homer Simpson sounds}

        Uh, what were you saying? Oh, yes, absolutely.Report

    • Avatar zic in reply to Burt Likko says:

      @burt-likko you’re placing a lot of emphasis on 9th circuit cases here; just to be clear, can you explain why?Report

      • Avatar NewDealer in reply to zic says:

        The Supreme Court has issued a steady number of victories for gay rights since the Romer decision in 1996. There was Romer, Lawrence, Windsor, and maybe some other cases.

        What the Supreme Court has not done is rule that sexuality should be treated as a protected class and that laws/regulations based on sexuality need to be justified by a heightened scrutiny analysis.

        Quick lesson: There are three classes of scrutiny that the courts use when analyzing whether a law is constitutional or not especially when the law is targeted at some kind of characteristic or group. The three classifications are strict, heightened/intermediate, and rational basis. Race gets strict/scrutiny, it is almost impossible for the Government to get passed strict scrutiny. Gender gets intermediate/heightened scrutiny, and age gets rational basis according to the rubric, there are other things that fall under each category. The joke in my Constitutional Law class was that the rational basis test is “say anything plausible with a straight face”. For example, it would be rational for a city to require police and firefighters to submit to physical testing once they reach 55 because it requires a lot of strength and health to be a good police office or firefighter.

        What is notable is that Romer failed on a rational basis test.

        The 9th Circuit decision in Abbot Laboratories is the first case where a Judge has said that even though the Supreme Court did not say so outright, the only logical way to read Windsor is that laws targeted at sexuality deserve extra-scrutiny. The Ninth Circuit went with heightened scrutiny which would seem to treat sexuality as being on par with gender. There might be some situations in which it makes sense to make classifications by gender but not many.

        The issue with the 9th Circuit is that the 9th Circuit is the 9th Circuit. They have a reputation for being overturned by the Supreme Court the most. The judge who wrote the Abbot decision is Judge Reinhardt. He is an old-school liberal and possibly the last of his kind. He was appointed by Jimmy Carter.Report

      • Avatar zic in reply to zic says:

        Thank you, New Dealer.

        It’s hard to keep this all straight when it’s not the water within which you swim.Report

      • Avatar James Hanley in reply to zic says:

        The Supreme Court has issued a steady number of victories for gay rights since the Romer decision in 1996. There was Romer, Lawrence, Windsor,

        All authored by Kennedy. Anybody want to wager on who writes the definitive decision when it comes down?

        And when will it be? Will any case get through the Circuit Courts in time to be on the Supreme’s docket for the 2014-15 term? Or will it be the following term?Report

      • Avatar Burt Likko in reply to zic says:

        Alsotoo, the Ninth Circuit decision is directly binding on all of the Ninth Circuit cases at once. So any SSM ban in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, or Washington is now presumptively invalid.Report

      • Avatar zic in reply to zic says:

        Okay, this really baffles:
        So any SSM ban in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, or Washington is now presumptively invalid.

        First, the standard only applies to other states within the district? But not to another district?

        So what happens if the 7th upholds a SSM ban, the 9th dismisses? Doesn’t that set up unequal sectors within the country?Report

      • Avatar James Hanley in reply to zic says:


        Exactly! Each circuit is authoritative only for the states within that circuit, and all federal district courts in the states within that circuit must follow the circuit’s rulings unless and until SCOTUS says otherwise.

        And as you say, that sets up conflicts between different parts of the country, while the Constitution is supposed to mean the same thing regardless of whether you’re in Vermont or New Mexico. So those conflicting rulings are among the ones SCOTUS is most likely to accept on appeal, so it can sort out those conflicts.Report

  5. Avatar Mike Schilling says:

    The Fox News report about Virginia you link says

    During verbal arguments in the case, Virginia Solicitor General Stuart Raphael said that the ban on gay marriage is legally indistinguishable from the ban on same-sex marriage.

    We garble, you decide.Report

  6. Avatar Aaron W says:

    It’s so bizarre how this issue has done a complete 180 from 2008, where even California voted for a ban on same sex marriage.

    Then again, there are almost zero logical arguments against same sex marriage that don’t rely on the ickyness of gay people, so it shouldn’t be such a surprise.Report

    • Avatar NewDealer in reply to Aaron W says:

      This is what happens when you have a changing electorate. Keep in mind that Prop 8 was close or at least closely fought.

      The Kansas State Senate decided to table the horrible bill passed by their lower house. The head of the Kansas State Senate said passing the bill would be an effective death knell for the GOP and she was almost certainly right.

      Andrew Sullivan wrote that if Kansas passed the gay-bashing bill, the GOP would effectively lose almost every voter under 40. I think he is spot on with this observation.

      The base of the GOP is older and whiter than the nation as a whole and they are the only demographic group that dislikes drug reform and gay marriage. Younger voters lean Democratic but there are plenty with more moderate economic views that the GOP should be able to court. This is in theory. They need to stick away from the far-right social politics though and that is proving impossible for them.Report