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Expansion of Same-sex marriage in the U.S.

Part 2: Predictions by U.S. Supreme Court
Justices Scalia & Kennedy (cont'd), and by
Linda Feldman of the Christian Science Monitor

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This topic is continued from a previous essay

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Predictions of the future of SSM. as extracted from writings of two U.S. Supreme Court justices (Cont'd):

In 2013-JUN, Robert Barnes, writing in the Washington Post, commented on Justice Antonin Scalia's minority opinion in U.S. v. Wilson. This is the case that declared the most important part of the federal Defense of Marriage Act (DOMA) to be unconstitutional:

"He all but sounded a fire alarm when Justice Anthony M. Kennedy said the court’s majority opinion in U.S. v. Windsor, which struck down a crucial part of the [federal] Defense of Marriage Act, was built on a bedrock of respect for a state’s ability to define marriage and 'confined to those lawful marriages' that states decided to sanction.

Scalia warned that the opinion by Kennedy and the court’s liberals was not actually a toast to federalism; it was larded with language that provided a road map for challenging the states that do not allow same-sex marriage.

'By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority [opinion] arms well every challenger to a state law restricting marriage to its traditional definition,' Scalia wrote.

Challenges to states that don’t allow gay marriage are inevitable.

'No one should be fooled; it is just a matter of listening and waiting for the other shoe,' Scalia said.

No one knows what the court will look like when the follow-up case on same-sex marriage arrives at the court. But this is known: Ginsburg is 80, and Scalia is 77; Kennedy is soon to be 77, and liberal Justice Stephen G. Breyer turns 75 this summer.

Whichever president appoints their successors will have much to say about what comes next." 1

Justice Scalia seems to believe that a lawyer claiming opposition to same-sex marriage to be "an enemy of human decency" is speaking the truth, and that this type of comment would be a very effective in court. Many in the LGBT community and their allies would agree.

Justice Scalia also commented:

"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. ... Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better." 2,3

Attorney Ruth Harlow who argued the Lawrence v. Texas case in 2013 before the U.S. Supreme Court has predicted that same-sex couples will be able to marry anywhere in the U.S. by 2023. Commenting on Justice Scalia's dissents both in Lawrence (2003) and in Windsor (2013) she said that he:

"... is an amazingly good predictor of the future. ... Forecasting the future in a very animated and panicked way misapprehends what is happening here. He seems to think that the court is leading the country ... but it's the other way around, the country is leading the court." 4

Probaby not even Justice Scalia could have predicted that the majority opinion in Windsor would be cited in a ruling by a Judge of a federal District Court within four weeks. Judge Timothy Black in in Ohio did exactly that! He based his ruling largely on U.S. v. Wilson in a case involving very unusual circumstances. He issued a temporary injunction ordering the recognition of a legal same-sex marriage by Ohio that had been recently solemnized in Maryland -- a practice prohibited by the marriage laws and constitution of Ohio.

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2013-JUL-02: Linda Feldman of the Christian Science Monitor (CSM) wrote about 12 SSM battleground states to watch:

She wrote:

"Three more states -- Illinois, New Jersey, and Hawaii --could legalize same-sex marriage this year [2013], joining 13 states plus the District of Columbia that already allow it.

Next year could see another wave, with as many as five states moving to repeal constitutional bans. Nevada’s constitutional ban could fall in 2016. And New Mexico, which does not have a constitutional ban, could also take action. Court cases could also hasten legalization in some states, such as Pennsylvania, and ultimately could bring the issue back to the US Supreme Court." 5

The three states that she mentioned that might legalize SSM during 2013 are:

  • Illinois: A same-sex marriage passed the State Senate in 2013-FEB, but was not voted upon in the House because of opposition by the Roman Catholic Church and conservative African-American church groups. Thomas Peters, communications director of the National Organization for Marriage -- the main national group opposing marriage for the LGBT community -- said:

    "We have pretty much stopped them in their tracks."

    Proponents of SSM were not able to gather sufficient support to pass the bill before the House entered its summer recess. The bill is expected to be debated again in 2013-NOV when the next session of the House begins.

  • New Jersey: A SSM bill passed the Democratically controlled House and Senate, but was vetoed by Governor Chris Christie (R). There is speculation that Christie plans to run for President in 2016 as a Republican. If he were to support marriage equality, his chances of any future role in the national party would probably instantly vaporize.

    Seven same-sex couples in New Jersey had launched a lawsuit to legalize SSM. It was put on hold until the Supreme Court issued its ruling in U.S. v. Wilson on 2013-JUL-26. The Court has scheduled a hearing for AUG-15.

    At the time of his veto, Governor Christie suggested a state referendum be held. A Rutgers University Poll released on JUN-17 showed 59% of adults favor SSM -- the highest percentage support of any state that we have seen to date. Many legislators dislike the idea of a referendum because it puts a fundamental human right up for a vote by the general public and subject it to the "tyrrany of the majority." But others feel that if a referendum has a significant chance of ending discrimination against a minority group, it should be attempted.

  • Hawaii: A bill to legalize SSM was introduced into the Legislature during 2013-JAN, but was blocked by a procedural hurdle. According to the Freedom to Marry web site:

    "The most likely outcome now is that the marriage bill will be placed on hold for the remainder of 2013.... [However] as the bills remain ‘alive’ through 2014, state advocates ... are now working to encourage supportive legislators to take affirmative steps to move marriage forward."

    About 55% of Hawaiian adults support SSM according to a recent poll. Governor Neil Abercrombie (D) also supports the bill.

Meanwhile, a federal court case, Jackson v. Abercrombie -- is also active. During 2012, a judge in District Court ruled that marriage inequality in the state violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. That decision is currently being appealed to the 9th U.S. Circuit Court of Appeals. That is the court that favored SSM in the Proposition 8 case. If that court rules again in favor of SSM as it did in the Proposition 8 case, then the decision whether to appeal the case to the U.S. Supreme Court become a high-risk decision. If the Justices of the Supreme Court were to uphold SSM in Hawaii, they might make a ruling sufficiently broad to legalize SSM across the entire country, as they did in the 1967 case Loving v. Virginia which legalized interracial marriage country-wide.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Robert Barnes, "Kennedy’s opinion may predict the future for same-sex marriage," Washington Post, 2013-JUN-26, at: http://articles.washingtonpost.com/
  2. Debra Weiss, "Scalia predicts the future, once again, in gay-marriage dissent," ABA Journal, 2012-JUN-27, at: http://www.abajournal.com/
  3. Asawin Suebsaeng, "The Best (or Worst) Lines From Scalia's Angry Dissent on the Supreme Court's Defense of Marriage Act Ruling," Mother Jones, 2013-JUN-26, at: http://www.motherjones.com/
  4. Steven Nelson, "Gay Marriage Will Go Nationwide in 10 Years, Lawrence v. Texas Attorney Predicts," US News and World Report, 2013-JUN-26, at: http://www.usnews.com/
  5. Linda Feldmann,"Gay marriage battlegrounds: 12 states to watch," Christian Science Monitor, 2013-JUL-02, at: http://www.csmonitor.com/
  6. Will Fox, "Gay marriage is legal in every US state," undated, at: http://www.futuretimeline.net/
  7. "US Constitution - 5th and 14th Amendments," FindUSLaw, undated, at: http://finduslaw.com/

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Copyright © 2013 by Ontario Consultants on Religious Tolerance 
Originally written: 2013-JUL-15
Latest update: 2013-JUL-28
Author: B.A. Robinson

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