Beautiful Equality Comes To Marriages In America

Screen Shot 2015-06-26 at 8.10.49 AMLove will find a way, and it finally has. There are many, many friends I am thinking of right now, and they all know exactly who they are. Congratulations, and it was far too long coming. Here is the opinion.

EQUALITY

There is so much to say, that it is hard to know what to actually say. There are many quotes like this one, but it is indicative of the decision:

“laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

What I don’t find in the majority decision, as wonderful as it is, is discussion of heightened scrutiny, strict scrutiny, or other clear cut, across the board protection for the status of sexual identity. And that is disappointing. Also why I cried bit when SCOTUS, two years ago to this very day, callously refused to take the incredibly wonderful tee shot that Vaughn Walker gave them in the Proposition 8 case previously.

I guess the handwriting was on the wall when even the old liberal lion Steve Reinhardt, a man I have met, and a judge I truly love and revere, pulled up short and did not have the balls to take the root concept of sexual identity “equality” where it naturally flowed when he had the pen in his wise hand. But he didn’t then, and his old friend Tony Kennedy has not today.

So, while there is so much to cheer right this moment, we, and this country, are still far from where we need to be with regard to inclusion of all our citizens in the concept of equality. It is more than black and white, it is straight, gay and trans too. We are all on this patch of earth together, and we all are equal, and that needs to be admitted legally by the highest court in the land and understood by all the people it serves.

So, there are still miles to be traveled. Let the four, count them four, spittle laced, bigoted, backwards, and disgusting dissents in the Obergefell decision speak for themselves. Honestly, they make me want to puke. For all that were celebrating the enlightened liberal thought of Chief Justice John G. Roberts yesterday, today is a rough reminder of who and what he really is. And you really have to read Scalia and Alito to understand the fucked up pathology of the dissenters. Wow.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
26 replies
  1. phred says:

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    WOOOOOOOO HOOOOOOOOO!!!!!!!!!!!!!
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    Thanks bmaz, I’ve been looking forward to this post : )
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    It is unfortunate that Kennedy didn’t ensure equal protection no matter one’s sexual identity, but I am optimistic that day will come in spite of the knuckle dragging bigots…
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    For today, I am happy to celebrate a hard won victory that has been too long in coming. Yay, us!

  2. scribe says:

    SCOTUSBlog, in the live thread, concurred in your noting that the level of scrutiny is left undefined in the majority opinion. It’ll be a litigious mess but I have to think that the result Kennedy provided is as far as he would go. OTOH, it would stand to reason that, marriage having been clearly defined as a fundamental right already, the level of scrutiny applicable has already been defined.
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    As the swing vote on this, it’s well within Kennedy’s power to impose that kind of thing upon the opinion. I’m not entirely opposed to his having left it that way, b/c it will give the parties and counsel fighting for equality something more to work on, to further embed this newly defined right in the fabric of the law. Be sure to note, however, that Roberts also seems to be warning in his dissent about the revival of Lochner-type “liberty” arguments. As we should recall, Lochner did not yield good results for a panoply of socially-useful economic regulation. Moreover, it needs be remembered that this newly-defined right can, and will, run up against sincerely-held religious beliefs of a lot of people. The readers here may pooh-pooh those religious beliefs or their expressions, for all sorts of good reasons. But that does not change the reality that those beliefs are both sincere, strongly held, and worthy of respect – and entitled to some respect in the courts as well. It would indeed be tragic if people who have, rightly, sought respect and recognition for what and who they are, could not find it in themselves to do likewise for their fellow people with their own uniquenesses.
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    Everyone is due respect. Everyone needs to remember that.

    • Peterr says:

      that does not change the reality that those beliefs are both sincere, strongly held, and worthy of respect – and entitled to some respect in the courts as well.

      I respectfully dissent.
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      These beliefs of which you speak may be sincerely held and strongly held, but they are also noxious. The *people* who hold these beliefs may be worthy of respect, but not the beliefs themselves.

      • orionATL says:

        “i respectfully dissent.”

        as do i.

        not all opinions should be treated as equal.

        (i’m still blistering hot about the southern “cultural heritage” opinions that are so personally hurtful and socially destructive.)

        let me repeat what others have said more completely:

        same-sex marriage, or any class of marriage, is NOT a religious issue; religous bigots can butt out; same-sex marriage is an equal-rights-under-law/social compact issue – period

      • scribe says:

        And, if you keep going an eye for an eye, pretty soon everyone winds up blind. More to the point, I thought you were a member of the clergy, or at least clerically educated and therefore knew better. Calling people or their beliefs “noxious” can, and likely will in the context of these cases and the rights they announce and protect, ultimately lead to more anger, not less. And when the next young Mr. Roof pops up, full of anger and empty of thought, looking for some gays to kill, there will be all sorts of navel-gazing on “how can America cough up hairballs like this one”.
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        Leave the abuse and hate to the abusers and haters.

        • jonf says:

          I respect religious beliefs. But I do not respect any religious right one wishes to impose on me.

        • Peterr says:

          Again, I respectfully dissent.
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          As a member of the clergy, I firmly believe in the appropriateness of separating disdain for noxious opinions and beliefs from the people who hold them. I also firmly believe in the appropriateness of labeling noxious acts and beliefs as such. How else is one to move others into good behavior without identifying what is ill behavior? As one of the family members said at Roof’s arraignment, “You were my brother when you came to our bible study, and you’re still my brother today” at the same time she roundly labeled his gunfire as (to use my word) noxious.
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          Refusing to call bullshit on noxious beliefs is what has led us to the myth of the Confederate flag as a symbol of “southern heritage” as a way of disguising the fact that said heritage involved the ownership of some people by other people with all that entails: rape, sale of children from the arms of their parents, physical abuse, and murder, just to get started on the list of atrocities. This is the “heritage” that led Roof to do what he did – a heritage that elevated the white man above the black (or other non-whites), even to the point of denying the humanity of all but the white race.
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          I refuse to call slavery and the glorification of it anything but noxious. Similarly, let’s not call what happened in 1861-65 “the recent unpleasantness”. It was war, filled with killing and bloodshed and destruction. It was a noxious thing, fought for noxious reasons, and the abuse and bigotry aimed at LGBTs and those who support them is noxious as well.
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          Samuel Alito seems to agree with you, though (pdf p. 102):

          Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

          People have the right to hold their own beliefs, however noxious those beliefs may be. People have the right to talk about their beliefs, however noxious those beliefs may be. Given that, people also need to realize that others may not want to associate themselves with those beliefs, and take steps to disassociate themselves from those who hold them.
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          And if others hold that those beliefs are noxious and bigoted, they should not be surprised nor offended if said others label them as such. Univision does not want to associate itself with Donald Trump’s anti-immigrant, anti-Mexican beliefs, and took action to label it as bigotry even as they stepped away from him and the Miss Universe pageant. This is what people do, and it is no sin to do so, Donald Trump’s surprise and Samuel Alito’s fears notwithstanding.

    • phred says:

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      And this is why separation of church and state is absolutely essential.
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      I have no problem with people holding views I do not share (whether motivated by religion or any other cause). I do reserve the right to dispute those views, in private, in public, and in the courts if necessary.
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      As far as I am aware, no one has suggested that the local parish priest has to preside over a same sex marriage ceremony, much less affix his signature to the marriage license.
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      What is being required is same sex marriage must be equally recognized by our civil institutions and afforded the same legal rights as opposite gender marriages.
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      If a civil court officer has a personal problem with acting in their official capacity serving all citizens equally, then they need to find another line of employment.
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      I am not asking anyone to change their “deeply held beliefs”. But I am demanding that they not occupy a position that allows them to discriminate against their fellow citizens.

  3. Rayne says:

    This, from Roberts’ dissent, really pissed me off:

    “… Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”

    Hello, they did their fucking job, bonehead, they settled a dispute based on the Constitution, just as the other justices including Roberts do while under our employ. It wasn’t THEIR vision, it was already the people’s vision in a substantive number of states, and only the bassackwards who continue to deny other humans their creator-endowed rights are hold-outs.

    And then this:

    “… Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

    Right. And we should still tolerate Jim Crow because it’s too hard for southern whites to handle equal rights even to this day. What utter bullshit, wrapped in right-wing language; you’ll note he didn’t call it “marriage equality” or “equal marriage,” because he personally can’t accept it as such, and expects as Chief Justice his opinion is worth more than that of a growing majority of U.S. voters.

    And Clarence Thomas’ shameful support of states’ rights is utter hypocrisy:

    “…the People have opted to retain the traditional definition of marriage. … That the petitioners disagree with the result of that process does not make it any less legitimate.”

    If the question had been left to the People under states’ rights, Thomas’ marriage to a white woman would have remained illegal in many states, and his own freedom to be educated, vote, be appointed to public office would have been likewise illegal because he is not white.

    If the shooting deaths last week in Charleston weren’t already proof that U.S. still has work to do on civil rights, Thomas makes it clear even the SCOTUS’ conservatives need a wake-up call.

    • orionATL says:

      that the chief justice of a united states supreme court that that has lived by sophistical, non-binding 5-4 decisions,
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      a court that is historically highly aberrant,
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      is totally unrespresentative of the American people as a whole, and
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      is idealogically debased, with six arch conservative catholic members, four of whom including that chief justice, are overt political operatives of the republican party,

      that that chief justice john roberts could write this:
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      “… Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”

      is an act of monumental hypocrisy.

    • P J Evans says:

      The butthurt in the dissents is amazing. Even Roberts has it:

      If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

      Dipshit. He can’t even admit that the Constitution includes equal protection under the law for everyone.

  4. bloopie2 says:

    Is Scalia one of those people who would have been against equal rights for blacks fifty years ago? And suffrage for women a hundred years ago? And voting rights for non-landowners two hundred years ago? And immigration, well, at any time? (Maybe not – his father was a Sicilian immigrant). I’ll bet he even thinks that non-well-educated people shouldn’t be allowed to vote (a concept proven wrong by his own nature – he is highly educated and still has horrible ideas). I mean, it’s okay to be an old fart, but not to the point of holding back others who don’t share your views. Maybe we should pass a law that says that “Marriage By Italians Is Illegal”. Would he vote to uphold that one?

  5. Ed Walker says:

    Clarence Thomas: “Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”
    *
    Can we have term limits now?

    • Jim White says:

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      But they are such happy tears. What a wonderful video.
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      Congrats to one and all as we lived to see our country take a big, if faltering, step forward.

    • Peterr says:

      Just got an email from the executive director of the Heartland Men’s Chorus in KC:

      It’s a glorious day in these United States as our nation joins 20 other countries where same sex marriage is recognized.
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      It feels personally poignant. Yesterday, my partner Randy and I celebrated our 20th anniversary. Next month, we’ll mark the one year anniversary of being legally married in California. Now, our marriage will be recognized where we live in Missouri.
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      For two decades, gay men’s choruses across North America have sung out for marriage equality. I am confident that our voices and positive representation of the gay community have had huge impact in the changing hearts and minds of our fellow citizens.
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      But our work is not done! In our home states of Missouri and Kansas, a couple will be able to be married one day and then the next day may be fired from their jobs or lose their home because they are gay.
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      And so, we continue to sing out! As we launch our 30th season, plans are underway for outreach into rural communities in Missouri and a tour of Western Kansas. . .
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      Join us this afternoon for the rally celebrating the SCOTUS decision, 5:30 PM in Ilus Davis Park, downtown, north of City Hall (between Oak & Locust and 9th & 10th Streets)..

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      I can’t get there because of other obligations, but it should be a grand party!

      • Jim White says:

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        I get email, too. This one from my church:

        Marriage Equality Decision Celebration Tonight!
        IT HAPPENED IN OUR LIFETIME!!! The Supreme Court just released the 5-4 decision stating under the 14th Amendment the states must license same-sex marriages and must recognize same-sex marriages performed out-of-state.

        Equality Florida and their hosting partners will gather tonight as we celebrate the decision on nationwide marriage equality! The event will be at the Pride Community Center of North Central Florida at 3131 NW 13th St, Suite 62, Gainesville, from 6-8pm. We are all invited to celebrate this historic day for all LGBT Americans!

        UCG is a co-host of the event and Rev. Shelly Wilson will give remarks. Sweet snacks/finger foods are welcomed!
        Feel free to forward this invite and click here to RSVP: http://www.eqfl.org/scotus/gainesville

        Co-sponsors:
        PCCNCF, United Church of Gainesville, Human Rights Council, Freedom to Marry, LGBTA Democratic Caucus, HRC, Lambda Legal, NCLR, PFLAG Gainesville, Sistersong Community Choir

  6. Ben Franklin says:

    I don’t have a dog in this fight except that the conservative pit-bull breeders are losing every fight and every bet on every fight lately. Huzzaaahhhhh !!!

  7. P J Evans says:

    Well, Roy Moore is still claiming that federal laws and courts are not superior to state laws and courts.
    Can we take away his law license this time and retire him permanently?

    • phred says:

      Poor Roy. It’s so hard to be on the losing side. Believe me, a lot of us around here are depressingly familiar with his feelings of denial and despair.
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      Heh. He’ll get over it.
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      But I’m not opposed to having him disbarred. You know, should it come up… ; )

  8. phred says:

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    And the US women advance in the World Cup. An inconsequential footnote on a historic day, but still, it makes me happy : )
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    Yay us!

    • Bay State Librul says:

      Now, if only Brady is vindicated and Wells is required to mail back his $5 Million Report
      and forced to enter a remedial course in science.

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