Monday, October 06, 2014

"They Ain't Puttin' Me On A Bumper Sticker!"

     The U. S. Supreme Court having successfully kicked the gay marriage can down the road, I am reminded that the members of the present Court grew up -- or were already grown -- when "IMPEACH EARL WARREN" billboards and bumper stickers were popping up like toadstools throughout the South and Midwest.  Much as the Justices may admire the late Chief Justice's organizational savvy, they've also got to be aware that no matter how they rule, they'll come in for some Impeach-Earl-Warren level loathing and scorn and in the modern political climate, that's not a really good or even especially safe place to be.

     Much as you -- or, as one example, Indiana's Governor -- might like the United States Supreme Court to rule on this issue, it's going to take cleverer finessing than anyone's come up with so far to get them to do it.

11 comments:

Keads said...

I'm gonna pull a wookie thing here. I don't care what anyone does in the privacy of their residence. The .gov stepped into it with giving tax breaks and deductions for offspring and the current legal definition of marriage.

That was bad. I'm penalized for not reproducing and not having a legally (or illegally) recognized partner?

Roberta X said...

Actually, IIRC, the most-expensive situation was to be married but childless. So I guess the IRS has their own opinion of the purpose of marriage....

docjim505 said...

Sigh...

On the one hand, this isn't the SCOTUS' business (unless somebody can point me to that part of the Constitution that gives the .fed authority over marriage).

On the other, it IS an interstate - even INTRAstate - matter that somebody needs to sort out. Must the people of (for example) North Carolina, who generally DON'T support gay marriage, recognize a marriage contracted in Massachusetts or San Francisco where they do? Or must people who entered into a perfectly legal contract in Massachusetts be penalized because they moved to NC?

What a mess.

And (thinking ahead here) if the SCOTUS rules that a marriage contract legal in one place in the good ol' US of A must be legal in ALL places... what does that say about such things as drivers licences or (gasp) concealed carry permits?

If it's legal here, it's legal everywhere, right?

Jake (formerly Riposte3) said...

"On the one hand, this isn't the SCOTUS' business (unless somebody can point me to that part of the Constitution that gives the .fed authority over marriage)."

Amendment 14, Section 1: "nor shall any state [...] deny to any person within its jurisdiction the equal protection of the laws."

There is a vast array of legal benefits accorded automatically with legal marriage. When a state denies those benefits to a specific class of people by denying them the ability to legally marry, it becomes a question for the federal courts as to whether such denial violates the Fourteenth Amendment's equal protection clause.

docjim505 said...

Jake (formerly Riposte3):

The Fourteenth Amendment argument, while it certainly has merit, opens a whole can of worms (as the SCOTUS has undoubtedly discovered by now). If EVERYBODY is to get "equal protection of the law", it begs the question about just what that means. Shall polygamists, for example, also be allowed to marry? What about siblings? Minors?

As a personal matter, I say that anybody who wants to be married ought to be allowed so long as the other party(ies) is willing (oops! Are mentally handicapped people denied equal protection because they aren't allowed to do various things?).

As a legal matter, I would point to the Ninth and Tenth Amendments as well as a few hundred years of US legal precedent, which show that (A) marriage is a state / local matter and (B) we can, have and do tell perfectly sane adults* that they are not allowed to marry this person or that.

=====

(*) "Adult", of course, being a legal definition that has (and, I believe, still does) vary from state to state.

Fuzzy Curmudgeon said...

the most-expensive situation was to be married but childless

And my wife and I can vouch for that, from personal experience.

rickn8or said...

Looks like the Supremes are holding their breath and hoping the remaining Circuits don't weigh in on the opposite side of the pro-gay marriage rulings of the other Circuits.

If the issue is decided the same way in all the Circuits then the issue is decided while the Supremes get to dodge the bullet.

The issue is of interest to me as a former classmate of mine is a principal in Jernigan v. Crane.

Otherwise, I'm like Keads; "Okay, you stepped in it when you stuck your nose in private relationships, now fix it!"

Jake (formerly Riposte3) said...

docjim505:

" If EVERYBODY is to get "equal protection of the law", it begs the question about just what that means. Shall polygamists, for example, also be allowed to marry? What about siblings? Minors?"

Polygamists and minors boils down to the idea of informed consent. For polygamy, consent is an easy question. For minors, capability of consent is its own tangle of questions that is much more complicated.

Incestuous relationships involve additional questions that don't apply here.

"Are mentally handicapped people denied equal protection because they aren't allowed to do various things?"

A) There is, in fact, due process involved when someone is declared sufficiently mentally handicapped to have such restrictions applied. B) This again gets into the question of whether or not someone is capable of informed consent.

"As a legal matter, I would point to the Ninth and Tenth Amendments as well as a few hundred years of US legal precedent, which show that (A) marriage is a state / local matter and (B) we can, have and do tell perfectly sane adults* that they are not allowed to marry this person or that."

It was decided over 40 years ago that the Fourteenth Amendment does apply to marriage.

Think of it this way: Even in something that is obviously a purely state or local matter with no federal involvement whatsoever, the state and/or local laws on that subject cannot violate the equal protection clause. It is as equally binding on states as it is on the federal government.

docjim505 said...

Jake (formerly Riposte3):

Good points. Still, I note some (for want of a better term) hedges in your response:

--- "involve additional questions that don't apply here"

--- "capability of consent is its own tangle of questions that is much more complicated"

As a matter of interest, I cite Pace v Alabama (106 U.S. 583, 1883), which gives a somewhat (ahem) dated view of "equal protection:

"Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice he shall not be subjected, for the same offense, to any greater or different punishment. Such was the view of congress in the re-enactment of the civil-rights act, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares that they shall be subject 'to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.'"

It seems to me that SCOTUS finessed the law just as modern courts have done (or not) on gay marriage, drug sentencing and some other controversial subjects.

It remains to be seen what (if anything) the current Court has to say on the subject of gay marriage. It may well be that they will simply wait it out until it becomes moot, either because enough people will vote to make gay marriage legal in the several states or else the weight of legal precedent from lower courts will decide the matter for them.

Anonymous said...

Docjim505

Most likely to get the SCOTUS involved you would need to get two or more federal circuit courts to disagree. So far it's been one way traffic in the lower courts

Xyz

rickn8or said...

Xyz, after watching the Supremes for a couple of decades on gun rights issues, it's apparent they won't make a decision until they absolutely have to.

Like I said, they're waiting out decisions from (I think) two more Circuits and hoping both of them come out pro-gay marriage.