Texas is setting itself up for a showdown with the Supreme Court. A bill to defy the court’s rulings died in the House last week, but anti-gay politicians could find a sneaky way to revive it. Meanwhile, the Attorney General of Texas refuses to say if he’ll obey the Supreme Court’s ruling in June.
Legislators in Texas nearly passed a bill that would have forced the state to defy the Supreme Court last week. But the deadline passed before they could hold a vote, which means the bill’s off the table, for now. If it had passed, it would have withheld funding from government offices that obeyed a pro-equality ruling from the Supreme Court.
That could never have withstood a lawsuit. States simply don’t get to decide which Supreme Court rulings they want to follow. What’s scary is that it an obviously unconstitutional bill even made it this far — and may still come back. Bill sponsor Cecil Bell says that he might find a way to attach it to some other bill that’s still alive. So we’re not out of the woods yet.
And there’s another dangerous bill that DID pass, but it’s getting less attention. That’s SB2065, which contains a hidden trojan horse for discrimination. Supporters claim that the bill lets members of the clergy refuse to conduct marriages that violate their conscience. But if that were true, there would be no need for the bill. Religious officials already have the freedom to refuse certain marriages. What the bill actually does is extend that exemption to public officials who have religious affiliations.
So for example, if a city was the hire a minister as justice of the peace, even though he’s serving in a government role, he’d be allowed to let his religious rules override the rules of his job. Couples could be turned away from government offices with no recourse. The bill passed the Senate last week, and missed its chance for a vote in the House, but like the other bill could always come back as an amendment.
There are nearly two dozen anti-gay bills working their way through the Texas legislature right now. Many, like Cecil Bell’s attempt to defy the Supreme Court, are clearly illegal. But Texas Attorney General Ken Paxton says he’ll defend them anyway. What’s more, Paxton refused to say whether he would obey Supreme Court orders to allow marriage equality in the state. That could be setting up a showdown between the Supreme Court’s orders and the State of Texas’s refusal, and it’s hard to say who would win. Just kidding, the Supreme Court would win. Eventually. But the last time there was a showdown like this, it took some unpleasant work to sort it out.
Texas lawmakers vote this week on whether the state should officially defy the Supreme Court’s ruling on marriage. Alabama and Minnesota are debating bills to undermine marriage equality. At least one presidential candidate seems to think that if elected he could veto the Supreme Court. But a new survey shows that Americans are getting tired of these anti-gay shenanigans.
When the Supreme Court rules on marriage this June, everyone in the country will be bound by the decision. Everyone. Even Texas. And yet, this week Texas lawmakers will vote on a bill that would order state employees to defy the anticipated pro-equality ruling from the the Supreme Court.
Just to be clear: this is definitely not allowed. When the Supreme Court says you have to do something, you can’t just pass a “no I don’t” bill, no matter how big your cowboy hat is. But the bad news is that this bill, which is clearly not constitutional, will probably pass. It has a ton of co-authors in the House, plenty of support in the Senate, and Governor Greg Abbott says that marriage equality causes unplanned pregnancies so he’s probably going to sign it.
Eventually, the law will be overturned, but it could take years and millions of dollars. And in the mean time, LGBTs will continue to suffer: denied the equal dignity of marrying the people they love, under a law that should never have been passed in the first place.
And it’s not just Texas that’s doing this. Last week Alabama debated HB56, which would allow judges to refuse to marry gay couples. And in Minnesota, where marriage has been legal for three years, Republicans are pushing a bill that would poke holes in the state’s nondiscrimination laws, allowing private companies to penalize gay and lesbian couples.
Presidential candidates are jumping on the bandwagon as well. Candidate Ben Carson says that if he was elected president, he’d simply overrule the Supreme Court’s decision. That statement is so completely divorced from how things work that it’s hard to understand what Carson thinks the President even is.
The good news is that most Americans want marriage equality, and they want it from the Supreme Court. A new survey shows that 58% of Americans want the LGBT couples bringing suit before the court to win. For now, those politicians passing anti-gay laws may be popular with their local base. But the more people learn that the bills are unnecessary — and aren’t even legal — the less popular they get.
Oral argument is done, and now we can make a few predictions about how the Supreme Court might rule in June. Texas lawmakers have a plan to stop marriage equality, and they don’t seem to care that their plan isn’t actually legal. And the National Organization for Marriage is insisting that they’ll still exist a year from now.
Last week we had oral argument in the four marriage cases before the Supreme Court, and it went pretty much as expected. Four justices seem ready to rule in favor of marriage equality, four seem opposed, and Kennedy seems to be somewhere in between. That means the court’s ultimate decision is probably going to rest with Kennedy, and he’s a hard one to predict.
But one of the most promising moments came when John Bursch, the lawyer representing the states that want to keep their marriage bans, tried to claim that the dignity of married couples doesn’t matter. That was probably a mistake, since affording dignity on an equal basis has always been a big deal for Kennedy — especially in cases involving LGBTs. It possible that with that one argument, Bursch lost the case. He’ll find out at the end of June just how badly he screwed up.
Meanwhile, some lawmakers in Texas have concocted a bizarre scheme just in case the Supreme Court rules in favor of marriage. If the court orders Texas to issue licenses to LGBT couples, a proposed bill by Representative Cecil Bell would bar the state from spending any money to implement the decision. That would be a clever maneuver, if it weren’t for the fact that it’s outright unconstitutional. No matter how many bills Texas passes, it doesn’t get to short-circuit the Supreme Court. Bell knows that, and he knows that if the bill passes, it’ll be overturned. But he’s going for it anyway.
And finally this week, the National Organization for Marriage has hinted at its future plans. They include lobbying for bills that would allow businesses to opt out of nondiscrimination laws; pushing for a federal constitutional marriage ban; and pressuring presidential candidates to oppose marriage equality.
Of these plans, the threat to undermine nondiscrimination laws, as recently happened in Indiana, is the most credible. Those “turn-away-the-gays” bills have been popping up for years and we’re likely to see more after the Supreme Court rules. Passing a constitutional amendment, on the other hand, is flat-out impossible at this point, like so many of NOM’s goals. And they might be able to pressure presidential candidates in 2016. But that’s assuming that NOM will exist at that point. Considering that their funding’s dried up, their supporters are evaporating, and they’re millions of dollars in debt, NOM may not even be worth worrying about a year from now.
I’ve rounded up the weirdest Supreme Court briefs that argue in favor of preventing gays and lesbians from marrying. Some are full of mistakes, others have baffling arguments. And at least one is incredibly sexist, and signed by a member of Congress.
Here’s a sampling of the logic before the US Supreme Court right now: Gays and lesbians shouldn’t be allowed to marry the person they love because most Americans are in favor of that, and also most Americans aren’t. In addition, marriage equality is bad for kids, according to a study had nothing to do with marriage. Also, religion. Tradition. And straight people don’t actually want to be married, so if gay people can marry then straight people will lose interest in each other. These are just some of the stupefying arguments presented to the US Supreme Court ahead of oral argument next week.
Maybe the strangest brief came from a group called “Same Sex Attracted Men and their Wives.” These are gay guys who married straight women, who seem to think that the case will result in a “mandate requiring same-sex marriage.” It won’t, don’t worry, nobody’s going to be required to have a same-sex wedding. The brief also argues that letting gay people marry each other suggests that there’s something wrong with gay people marrying straight people.
Whether it suggests that or not, the argument still doesn’t make sense. LGBTs should be prevented from marrying the person they love because it’s better to marry someone they don’t love? The logic here just doesn’t work. Which is probably why at least one of the couples cited in the brief, a gay man married to a straight woman, has since said that they wish they hadn’t been included.
Another brief claims that children of LGBTs do worse when their parents get married. But it cites a study from 1995, which is ten years before marriage equality was legal anywhere. Another says that gays are so politically powerful that they shouldn’t be allowed to marry because … well, that’s never explained. And it contradict’s NOM’s brief claiming that gays don’t actually have any public support.
Then there’s a brief signed by the “Leaders of the 2012 Republican National Convention Committee on the Platform.” That’s Congresswoman Marsha Blackburn, former Republican National Committee Vice-Chairman James Bopp Jr, and Carolyn McLarty, the chair of the RNC’s Committee on Resolution and a retired veterinarian. Their argument: men are so promiscuous and women are so emotional that they need to marry each other to control those impulses.
The brief also argues that only straight families, and their children, can resist tyrants and totalitarian regimes. No explanation of how that works. It also claims that the average gay relationship only lasts a year and a half. Again, this was paid for and signed by Republican party leaders and at least one member of Congress.
It’s probably a good thing that the briefs against marriage equality are so convoluted. It’s certainly not doing any favors to the states trying to preserve their marriage bans. Oral argument will be the morning of April 28, that’s next Tuesday. So keep an eye out for that, and hopefully this is the last time we’ll have to roll our eyes at arguments like these.
We have more details about the Supreme Court arguments at the end of the month. The National Organization for Marriage has fumbled yet another brief. And two public officials are suing for the right to discriminate.
Here’s what to expect on April 28, when the Supreme Court hears oral argument on marriage equality. First, the justices are only asking two questions: does the Constitution require states to issue marriage licenses to gay and lesbian couples; and are states required to honor marriage licenses from other states?
Mary Bonauto will argue question one, and Doug Hallward-Driemeier question two. They both got 30 minutes apiece. The states defending their ban will get 45 minutes for question 1 and 30 minutes for question 2. The Solicitor General will get 15 minutes to argue on behalf of the government. So it’ll all be over pretty quick. Then comes several weeks of waiting and speculating, with a ruling probably at the end of June.
The National Organization for Marriage will not be arguing in court, but they did submit a brief last week. They’re claiming that public opinion is still closely divided on marriage equality. That is not even remotely true. Dozens of national surveys show a pretty clear trend. NOM does cite two surveys that show a majority oppose the freedom to marry. But guess who paid for those surveys? The National Organization for Marriage. What a coincidence.
Also, it’s worth pointing out — even if it was true that support was declining, that doesn’t matter. NOM devoted a big chunk of their brief to arguing about opinion polls. But public opinion has nothing to do with either of the two questions the Supreme Court asked. So, good job, NOM.
Also this week, the 8th circuit committed to hearing cases from Arkansas, Missouri, Nebraska, and South Dakota on May 12. Two former magistrates in North Carolina have sued for the right to discriminate against gay and lesbian couples. And a lesbian couple in Guam has sued after being denied a marriage license. Guam is part of the US and covered by the Ninth Circuit, which overturned marriage bans several months ago. So hopefully this will be an easy one to clear up.
Michigan says that they don’t want to let gay people get married because that would be demeaning to gay people. Kentucky says that their marriage ban isn’t discriminatory, since LGBTs are free to get straight-married. Ohio wants to maintain its marriage ban out of concern for the people who voted for it. And Tennessee is just fixated on sex.
Four states will have to defend their marriage bans before the US Supreme Court this month, and all four are still scrambling to figure out exactly how they’re going to pull that off. They filed a series of briefs with the court last week that are full of weird claims and arguments that just don’t make sense. Kentucky says that its marriage ban doesn’t discriminate, since gay couples are still free to marry someone of the opposite sex. This is exactly the same argument that was used to justify bans on interracial marriage, and it’s essentially saying “you’re free to do whatever you want, as long as you actually do something else.”
Michigan’s brief is even crazier. They say that gaining marriage equality through a court order, rather than a popular vote, would be demeaning to gay couples. So, thanks, Michigan, for your concern. Tennessee is sticking with the argument that if gay couples can get married, then straight couples will stop raising children in stable families, somehow. And Ohio says that overturning the marriage ban would cause the people who voted for it to feel isolated. Sure.
Those four states will be going up against Mary Bonauto and Doug Hallward-Driemeier on April 28th. Mary’s a longtime champion of marriage equality. She won the case that brought marriage to Massachusetts in 2004, and the case that overturned DOMA in 2013. Doug has argued fourteen times before the Supreme Court, and is a former Assistant U.S. Solicitor General. Those marriage bans aren’t going to know what hit them.
Those are the headlines. Subscribe here to stay up to date. For the American Foundation for Equal Rights, I’m Matt Baume. Thanks for watching and we’ll see you next week.
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