Supreme Court Sets Date For Same-Sex Marriage Arguments

[AdamSmith]

And away we go.

Supreme Court Sets Date For Same-Sex Marriage Arguments Audio of the proceedings will be made available the same day

AP (WASHINGTON) — The Supreme Court will hear arguments over same-sex marriage on April 28 and make audio of the proceedings available later that day.

The gay marriage cases mark the only time this term that the court has agreed to the quick release of audio recordings. But the court is continuing its ban on providing video of its sessions or even live-streamed audio.

The arguments on gay marriage have been allotted two-and-a-half hours on the final Tuesday in April. Audio and the transcript of the proceedings should be available on the court’s website by 2 p.m. EDT, the court said Thursday in a statement.

The justices denied a request from The Associated Press and other media outlets for the quick release of audio of the argument Wednesday over the tax subsidies that are part of the health care overhaul. That audio will be made available on Friday.

The gay marriage cases come from the Cincinnati-based 6th U.S. Circuit Court of Appeals, so far the only federal appellate court that has upheld state bans on same-sex marriages since the justices’ 2013 ruling striking down part of the federal anti-gay marriage law.

Lawyers on both sides will get 90 minutes to argue whether gay and lesbian couples have a constitutional right to marry everywhere in the U.S. Another hour will be devoted to the question of whether states must recognize same-sex unions performed elsewhere.

A decision is expected before July.

http://time.com/3733943/supreme-court-sex-marriage/

[MsGuy]

Lawyers on both sides will get 90 minutes to argue whether gay and lesbian couples have a constitutional right to marry everywhere in the U.S.

Gays do not have a constitutional right to marry anywhere (in the US). What we hope we do have is the same right as any other member of an unpopular class of folks not to be singled out and discriminated against by their government unless it be rationally related to the furtherance of a legitimate and compelling state interest. Whew...that's a mouthful, isn't it.

Roughly translated that means that courts are supposed to cast a hairy eyeball on laws that carve out a subset of the population and treat them worse than the rest of of us. It's not that all discriminatory laws are unconstitutional, just that such laws have to serve a legit state purpose in a rational way. That's called 'judicial scrutiny'.

Now just how hairy an eyeball a judge is supposed to cast depends on several factors:

1) How unpopular is the class and how well is it able to defend itself in the normal rough and tumble of legislative sausage making.

For instance: rich folks are normally deemed able to adequately defend themselves from the howling mob, so clearly discriminatory tax laws go unchallenged.

2) How legitimate is the state purpose and how nasty is the penalty? All states have a minimum age requirement to get a drivers license. Legitimate purpose: safe highways; penalty: not being able to drive a car.

3) How rationally related is the penalty to the purpose of the law? True that most (but not all) 12 year olds make terrible drivers but so do a lot 20 year olds, so... Well, it's a balancing act, it's not an unreasonable effort as part of a comprehensive scheme to make the roads safer, so let it go.

Remember that as recently as 25 years ago suppression of buggery was a legitimate public purpose and prison time was deemed a rational way to further that goal. Times change.

[MsGuy]

The DOJ just filed an amicus brief asking the court to strike down any state law banning same sex marriage. See PDF here. I think it fairly states the good guys version of the case and, for a Supreme Court brief, is not too heavy on legalese.

Ultimately all the litigation about gay rights tracks back to two landmark cases from the late 1990s.

Romer vs Evans first established that homosexuals were a 'suspect class', i.e. an unpopular minority historically known to be subjected to persecution by the larger community. See PDF here. In his dissent Justice Scalia quite rightly points out that the majority is skating on thin ice, constitutionally speaking, and is deploying a lot of smoke and mirrors to dodge sticky legal questions.

Lawrence vs. Evans established that suppression of sodomy was not a legitimate state interest sufficient to justify locking up queers in jail. See PDF here. Again Scalia forcefully argues the contrary view in his dissent. He also, correctly we hope, points out that the majority justices were deluding themselves to pretend that Romer + Lawrence did not directly lead to gay marriage equality.

On a personal note, I heard about the Romer decision on the evening news and immediately drove to a state university nearby to get a PDF printout of the decision. I just couldn't wait for regular channels and knew that news reports often get the substance of court opinions wrong. For once the reports were understated. I almost cried as I read the majority opinion.

From these two cases all our legal blessings flow. Amen.