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What exactly did the Supreme Court want Windsor to mean for state marriage equality bans?

LGBT Legal Cases Marriage equality Marriage Equality Trials

Some of our readers have pointed in the comments recently to the Slate piece published by Mark Joseph Stern yesterday titled–provocatively–“Judge Strikes Down Oklahoma’s Gay Marriage Ban, Calls Supreme Court’s Bluff.”

As readers of this site likely already know, a federal district court judge on Tuesday ruled that Oklahoma’s marriage equality ban is unconstitutional, staying his decision pending future higher court rulings but setting the stage for another equal marriage appeal before the Tenth Circuit, which is currently considering another pro-marriage equality ruling out of Utah.

Judge Kern’s 68-page ruling is thorough and persuasive, and also a little unusual: he praises the plaintiff same-sex couples for their tenacity in pursuing the lawsuit over the last decade (it was filed in late 2004), and in the same breath as he dismisses one of the couple’s legal complaints for lack of standing, he quotes Harriet Beecher Stowe, no less: “[N]ever give up, for that is just the place and time that the tide will turn.”

But the most intriguing–and boldest–element of Kern’s decision is precisely what Stern points to in his perceptive piece: a willingness to call out the highest court in the nation for refusing to offer clear legal rationales upon which lower courts can either uphold or invalidate state-based marriage equality bans.  Here’s Kern, for example, referring to the trifecta of pro-LGBT Supreme Court decisions in the last two decades–Romer v. Evans, Lawrence v. Texas and Windsor v. U.S.:

Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extend constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.

And here’s Stern’s analysis of the judge’s so-called ‘benchslap’:

This deft bit of logic isn’t just a clever reading of the tea leaves—it’s a near benchslap to the Supreme Court, criticizing the justices for keeping their legal reasoning shrouded in mystery while consistently striking down anti-gay laws. All federal judges are bound by Supreme Court precedent, of course, but how can a judge possibly apply the law when the justices consistently refuse to explain precisely what kind of constitutional protections gay people are afforded? Trial and error works just fine for the Supremes, but a judge like Kern can’t rule based on a few emotionally compelling but legally hazy proclamations. Instead, Kern takes Justice Kennedy’s poignantly pro-gay language at face value, ignoring the justice’s admittedly ambiguous legal reasoning and using only his tone as a guide. The inevitable result: A ban like Oklahoma’s, which is plainly designed to make gay people’s lives more difficult, has to go.

This decision—which Kern has already stayed, pending appeal—may soon be considered by the justices themselves, as they mull their many options among gay marriage cases. Regardless, it’s immensely gratifying to see a judge finally call the Supreme Court’s bluff. For more than 15 years, the court has dodged the most important constitutional questions behind the gay rights battle. Until now, the strategy has worked. But as Judge Kern so slyly suggests, rhetoric can only carry a legal theory so far—now it’s time for some answers.

Both Stern and Kern have a point here: it is frustrating for those of us who follow LGBT litigation and debate about what level of constitutional scrutiny LGBT people should be protected by–and just as much for the judges who must determine themselves what level of scrutiny to use–to have no clear guidance from the Supreme Court on the issue.  The justices, for now at least, seem to be availing themselves of an issue-by-issue strategy, ruling on constitutional questions as they come up to the high court without really laying the groundwork for lower courts to confidently make determinations on their own.

Nowhere is this better expressed than in Judge Kern’s exasperation over Baker v. Nelson, an issue which Stern left out of his Slate piece but which is evident from the judge’s ruling.  Baker was a 1972 Supreme Court decision dismissing a Minnesota same-sex couple’s marriage equality lawsuit “for want of a substantial federal question.”  Because of Supreme Court rules at the time, that dismissal technically stands as binding precedent, “until doctrinal developments or direct decisions by the Supreme Court indicate otherwise.”

LGBT advocates and many judges make the case that doctrinal developments–essentially, Supreme Court decisions like Romer, Lawrence and Windsor, have indeed demonstrated that the issue of state marriage equality bans does present a ‘substantial federal question.’  And Judge Kern’s decision demonstrates clear surprise that the Supreme Court didn’t explicitly say in its Windsor decision that Baker should be disregarded: “Based on the Windsor I decision, it seemed likely that the Supreme Court would address Baker‘s presidential value.  However, no Justice mentioned Baker in any part of the Windsor decision.”  Judge Kern then goes on to quote a law review article by Jonah Horwitz criticizing this silence.

In a way, this is how the judicial system works: district and circuit courts are meant to entertain new ideas and a diverse range of challenges and then the Supreme Court clarifies when the lower courts disagree.  Still, it’s been more than 40 years since Baker was handed down, and the argument that marriage equality doesn’t present a ‘substantial federal question’ is highly unpersuasive.  It would be helpful to advocates and lawyers on both sides of the issue if the Supreme Court made that clearer.

For more information on Bishop v. United States from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!

46 Comments

  • 1. Bruno71  |  January 16, 2014 at 11:48 am

    This guy really wanted to bitchslap SCOTUS it seems. I also detect a note of "I really don't want to be ruling this way given my personal views of the homosexuals" in his tone. That said, he ruled wisely and brought up valid questions in the process.

  • 2. DrHeimlich  |  January 16, 2014 at 2:31 pm

    There do seem to be grudging tones here and there in his opinion, but I'm not sure the praise of the plaintiffs he expresses makes sense if he truly didn't want to be ruling for them.

  • 3. Bruno71  |  January 16, 2014 at 3:30 pm

    It could be that he's so used to the way people in his state speak about "the homosexuals", his writing reflects that environment.

  • 4. JayJonson  |  January 16, 2014 at 5:23 pm

    I don't know what the Judge's personal views on homosexuality and homosexuals are, but he certainly recognized the animus on the part of those who put the marriage ban in place and he certainly called out the bullshit in their ex post facto justifications. I think he is a conscientious judge who wanted to follow Supreme Court precedence and was frustrated because of the lack of clarity in Windsor. That lack of clarity may have been a deliberate strategy on the part of the majority or it may have resulted from the need to represent a number of perspectives in cobbling together a majority opinion. In any case, Justice Kennedy chose not to answer a number of questions that would have been very helpful to answer and I am glad that Judge Kern pointed that out even as he reached what are the right interpretations of the leads given in the Windsor decision.

  • 5. Zack12  |  January 16, 2014 at 11:52 am

    One has to remember that while he was a Clinton appointee,he was likely a Blue Dog in his thinking.
    Having said that,I applaud a judge that can put aside whatever personal biases he has and look at the facts.
    And there really is no way to get around the fact these bans are because of a dislike for gay and lesbians,simple as that.

  • 6. Richard Weatherwax  |  January 16, 2014 at 12:08 pm

    I was surprised to see Kern asking, "but how can a judge possibly apply the law when the justices consistently refuse to explain precisely what kind of constitutional protections gay people are afforded?"

    If a judge has to ask that, then he or she should not be a judge: Gays and Lesbians should receive the same constitutional protections as everybody else.

  • 7. Anthony  |  January 16, 2014 at 12:16 pm

    Because SCOTUS hasn't declared gays a fully protected class yet. That is intentional on their part to let the public get adjusted before making a future sweeping ruling.

  • 8. Richard Weatherwax  |  January 16, 2014 at 1:09 pm

    If the Court made gays a "fully protected class", then the court would be open to the charge of giving gays special rights. That should be avoided.

  • 9. Drpatrick1  |  January 16, 2014 at 3:42 pm

    Declaring a group part of a suspect class, only ensures they will be treated equally under the law. It does not impart any rights not afforded any other group. You cannot fire a person because they are black just because you hate black people. However, black people can still be fired for cause. Likewise, white people are equally protected by laws banning racial discrimination. The thing is, whites are much less often the victims of racial discrimination, so we hear of those cases far less often. Protections based on sexual orientation will also protect straight people, but despite exhaustive efforts, I have yet to find a single law in the US which discriminates against straight people.

  • 10. sfbob  |  January 16, 2014 at 3:47 pm

    Nonsense. There are criteria for being considered a protected class. We meet them. That is not a special right; it is an almost mechanical application of an existing standard. Those elected officials who are objecting to court rulings in our favor are simply exhibiting willful ignorance or displaying a lack of comprehension as to what the requires. Or else they are going the "but that CAN'T apply to the gays because gay sex is gross!" as though that is supposed to be some legitimate reason not to afford us equality.

    If these were state level judges in states where judges and supreme court justices could be voted out, there might be a problem. But we are talking here about federal judges and justices who serve until they either resign, retire or die. This is the protection they have: they can issue unpopular rulings without fear of backlash from the electorate. That doesn't guarantee they'll always exploit the protection they have for worthy ends (see Citizens United and the Voting Rights Act rulings as examples of craven pandering to powerful interests on the part of the federal judiciary) but in this case it really doesn't matter and shouldn't matter what people say.

  • 11. Anthony  |  January 16, 2014 at 4:13 pm

    Exactly. The only people claiming that we are getting special rights are people who have literally never met a single gay person in their entire life. Or think we actually make a conscious decision to be attracted to the same gender. Which, speaking as a gay person, is utter bullshit.

  • 12. JayJonson  |  January 16, 2014 at 5:25 pm

    Or they are people who think they are entitled special rights because of their religious beliefs.

  • 13. Richard Weatherwax  |  January 16, 2014 at 6:47 pm

    But what people say does matter. People still have a voice in the executive and legislative branches of government. If it can be claimed that gays are getting special treatment from the courts, then it would have an effect on the legislation which congress and the states could pass.

  • 14. Anthony  |  January 16, 2014 at 6:54 pm

    And that would be instantly overturned by the courts. You're going in circles here.

  • 15. Straight Dave  |  January 16, 2014 at 7:51 pm

    Special treatment can not be plausibly claimed. Oh sure, the morons do it all the time, but they're clearly full o' shit. It carries no weight with sane people or the courts, and wouldn't survive in today's climate.

    PS: I still haven't figured out if you're a troll or an honest man who's just not up to date. Can you give me a clue?

  • 16. Colleen  |  January 16, 2014 at 8:52 pm

    I don't necessarily agree with Richard, (my understanding of the legal definition of 'protected class' is limited) but I think his point has some validity. You only need to look at the way Affirmative Action has been under attack since forever to see how people can turn protected status into a rhetorical weapon against vulnerable populations. They don't even need to be conscious of their own bias; they only need to feel injured by someone else getting protection.

  • 17. Straight Dave  |  January 16, 2014 at 9:03 pm

    I think the 2 are different. Affirmative Action was a deliberate "thumb on the scale" to make up for past disadvantages that continued to linger. Every AA "winner" necessarily implied another "loser" in the equation. Easy to see how that could breed resentment.

    The protected class notion, as I understand it, merely requires taking a close look at laws that are targeted specifically at one class of people to make sure they don't have a discriminatory intent or effect. This really is just a way of insuring equal treatment. I have no patience for people who object to legal equality, and any resentment is wholly unwarranted.

  • 18. ebohlman  |  January 16, 2014 at 11:11 pm

    You're correct: "suspect class" status only affects the level of scrutiny used by courts in evaluating equal protection claims. It has no effect whatsoever on non-governmental entities; it does not create any protection against discrimination in employment, housing, public accommodation, etc. The latter is only provided by specific anti-discrimination statutes.

    Thus if the SCOTUS ruled that we were a suspect class subject to strict scrutiny, we could still get fired for our orientation in states that don't have anti-discrimination laws (assuming ENDA isn't enacted). The ruling would only mean that laws that have the effect of disadvantaging us would be very unlikely to stand up.

    Nor does suspect-class status create any entitlement to monetary benefits. I think the average member of the public confuses anti-discrimination laws, benefit programs (none of which are class-specific [1]), and level-of-scrutiny. For example, the Americans With Disabilities Act (ADA) prohibits, among other things [2], employment discrimination against persons with disabilities. There's a reason why it uses that specific phrase rather than "disabled persons"; the latter phrase is a legal term of art that specifically refers to people who, by virtue of the disabilities, are unable to earn a living and therefore are entitled to cash benefits.

    It strikes some people as strange that the definition of "disability" isn't uniform between anti-discrimination law and benefits law, but the distinction is perfectly rational: the ADA is talking about people who can earn a living if employers treat them fairly, whereas the benefits laws are talking about a completely different group of people. Using a uniform definition would lead to either of two repugnant cases: Either employers would be required to hire people who were incapable of doing their jobs, or the government would be required to provide long-term cash benefits to people who were capable of working. Fortunately, the law requires neither.

    [1] Some native tribes/nations provide benefits that are only available to their members (for example, Sarah Palin's husband and kids get free healthcare coverage because of their tribal membership); this has nothing to do with the Federal government or any state government.

    [2] Section 2 of the ADA imposes some requirements on state and local governments, but that's not what I'm talking about here.

  • 19. Mike in Baltimore  |  January 16, 2014 at 8:56 pm

    "claimed" is NOT the same as proving what they claim.

    A person could "claim" that the moon is made of green cheese, but just because they "claim" the moon is made of green cheese does NOT mean the moon is made of green cheese.

    And courts do NOT make laws, but rule on laws.

    (In my opinion, the moon is probably made of cream cheese – someone misheard, and spread the rumor of 'green cheese' is my guess.)

  • 20. Richard Weatherwax  |  January 17, 2014 at 10:15 am

    You don't have to prove that the moon is made of green cheese for people to believe that the moon is made of green cheese.

  • 21. Karl Schneider  |  January 17, 2014 at 12:02 pm

    A point elegantly demonstrated by the plethora of gods humans have invented…

  • 22. Mike in Baltimore  |  January 16, 2014 at 6:18 pm

    ". . . intentional on their part to let the public get adjusted before making a future sweeping ruling."

    So, when the Loving case was decided in 1967, and it was not until after 1990 (23 or more years later) that more than 50% of the public approved of interracial marriage, SCOTUS was waiting for the public to "get adjusted"?

    And after the public had time to "get adjusted", what ruling did SCOTUS make on interracial marriage?

    Before you respond, remember that you gave NO time constraints in your post.

    Maybe SCOTUS should not be so obscure in it's rulings now, and go back to the manner it ruled in the 1960s and before – clear and to the point?

  • 23. Anthony  |  January 16, 2014 at 6:50 pm

    It took a couple of court cases to get legal equality for African Americans and women as well. You can't just do these things overnight.

  • 24. Mike in Baltimore  |  January 16, 2014 at 9:10 pm

    Anthony wrote:
    "It took a couple of court cases to get legal equality for African Americans and women as well."

    And what court cases are you thinking of?

    Remember, the discussion was about interracial marriage, not about legal equality for anything or anyone else.

  • 25. Anthony  |  January 16, 2014 at 9:48 pm

    http://en.wikipedia.org/wiki/List_of_landmark_cou

    Dred Scott, Plessy, Brown v Board, Loving for race.

    Reed, Frontiero, Craig for women.

  • 26. Mike in Baltimore  |  January 16, 2014 at 10:24 pm

    In what manner did any of the cases you 'cite' affect interracial marriage?

    The Loving decision was in 1967, dealing with interracial marriage. The Dred Scott case was in 1857; Plessy was in 1896; Oliver Brown et al. v The Board of Education of Topeka, Kansas was in 1954. I believe 1857, 1896 and 1954 all occured a decade to more than a century before 1967.

    Again, the Loving case and this discussion was about interracial marriage, NOT about anything else. Anyway, Dred Scott and Plessy went totally against ending discrimination of anyone but whites. In fact, Dred Scott and Plessy INCREASED discrimination. Dred Scott was overturned by passage of the 13th Amendment, and Plessy was the basis for many segregation laws in the South; Brown started the process of overturning Plessy.

    And you stated that there were "a couple of court cases", inferring that the Loving decision did not automatically allow interracial marriage. What court cases after the Loving case had to be heard and decided before interracial marriage came to be?

  • 27. Straight Dave  |  January 16, 2014 at 8:05 pm

    I think the older courts were more courageous and less ideological, and the public less polarized, than they are today. But I think Kennedy has milked this one enough. The country has moved at warp speed on this issue and any rumored backlash has been totally invisible. KS, MS, SC, and Scalia aren't going to be any more agreeable 5 years from now, so you might as well just get on with it.

  • 28. Zack12  |  January 16, 2014 at 8:11 pm

    Exactly,there are parts of the country still opposed to interracial marriage.
    Time to simply grant marriage equality once and for all.

  • 29. Mike in Baltimore  |  January 16, 2014 at 10:06 pm

    IF you had grown up during the 1950s/1960s (or even read a history book about that period of time), you would have seen that the public was EXTREMELY polarized about anything associated with race in that time period.

    The lunch counter sit-ins. George Wallace calling for 'segregation forever'. The fire hoses and dogs turned on people. Ratification of a Constitutional Amendment prohibiting poll taxes. And those all occurred in the 1960s.

    In 1968, my step-grandfather stated he would dance an Irish jig if he could when he heard that MLK Jr. had been assassinated. He was not the only one in the 'neighborhood' expressing such feelings. And my step-grandfather lived in NE Indiana all his life.

    Even if the public opinion changed at a glacial rate of 1% per year, and it took 23 or more years for approval to get above 50%, that means when SCOTUS ruled the rate of approval was at 30% or lower. I don't think a ratio of 70% or more/30% or less is "less polarized". I would consider it VERY polarized in favor of discrimination.

  • 30. Richard Weatherwax  |  January 17, 2014 at 10:45 am

    As a matter of fact, I grew up in the 1940s/1950s. Anti-Semitism was still strong, women were expected to stay home and raise kids, and then there was the fear of Communism and families building bomb shelters in their basements or backyards.

    In fact, Communism served as the scape-goat for everything people didn't like. Integration, women rights, even breast feeding was part of the Communist plot (breast feeding was the preferred method in the Soviet Union.)

    Jokes about homosexuals were were just an accepted part of the culture.

  • 31. Mike in Baltimore  |  January 17, 2014 at 12:15 pm

    Even though they were more CONservative, they were NOT afraid to make a clear decision when they made a ruling. They did NOT beat about the bush, making obscure decisions that had to be looked at like tea leaves or chicken entrails to figure out what was meant.

    There were many decisions made that many of us would disagree with, but they did not make obscure decisions as a general rule, but extremely clear decisions (Plessy v Ferguson is but one example).

    And your comment about jokes about homosexuals were an accepted part of the culture – yes, many tried to make those types of jokes an accepted part of the culture, but not all accepted those jokes as part of the culture, but actively worked against those 'jokes'.

  • 32. sfbob  |  January 17, 2014 at 10:53 am

    You're right up to a point. However, prior to the mid- to late-1930s when Roosevelt appointees began to dominate the makeup of the Supreme Court, the federal courts were in fact EXTREMELY conservative, continually supporting views we'd now view as completely tone-deaf. The Progressive movement in government originated in the latter part of the 19th Century but it took fifty years before the movement's views began to be fully reflected in court decisions.

    It was the era from the 1940's to the early 1970's which saw (with some exceptions) the peak of progressive and, if you will, "activist" influence in court decisions. The influence of the Progressive movement has waned ever since in part because Nixon and Reagan had so many opportunities to appoint conservative justices.

  • 33. Mike in Baltimore  |  January 17, 2014 at 12:17 pm

    See my reply to 'Richard Weatherwax'.

  • 34. JayJonson  |  January 17, 2014 at 8:46 am

    Brown v. Board of Education used the ambiguous term "all deliberate speed." Southern states (and some judges) took that to mean whenever you get around to it.

  • 35. Jim in Canada  |  January 16, 2014 at 10:30 pm

    The courts seem to be taking a long time deciding what the level of scrutiny is for laws that concern gay and lesbian people.

    For the legal experts out there, was it a long and difficult process to determine the level of scrutiny for other classes of citizens?

  • 36. sfbob  |  January 17, 2014 at 1:23 pm

    I've run several different Google searches on the phrase "level of scrutiny," with a bunch of variations, and thus far have been unable to find any historic perspective on how the expression came about or how it came to be used in terms of constitutional jurisprudence.

    I am not an attorney (I keep saying that, hoping people will not clobber me if I make a mistake) but from what I can glean, the concept of "levels of scrutiny" and "suspect class" flow from the Due Process clause of the 14th Amendment. Neither concept is stated anywhere within the 14th Amendment and therefore it required court rulings on various topics to develop both the framework and the rules of application. The process took something like 80 years.

    The 14th Amendment was ratified in 1868. But the notion of suspect classification was not created until the mid-1940s, using cases that revolved around the internment of Japanese-Americans during WWII. So part of the reason why Plessy vs Ferguson (1896) could permit public facilities to be racially segregated was because the notions of a "suspect class" and "heightened scrutiny" did not exist when the case was decided; race-based classifications were assumed to be rationally related to some legitimate purpose and that was all that was needed. It is interesting that when the twin concepts were first introduced, the laws in question (those pertaining to internment) were actually upheld by the Supreme Court. ("National security" was held to be the compelling state interest.)

    Given that questions of classification and levels of scrutiny took so long to take hold, it is, on one hand, not surprising that we have not yet achieved suspect class status. On the other hand, the rules are pretty straightforward and their applicability is so obvious that the maine reason we still have not received designation as a suspect class is that society's disapproval of homosexuality remains as an unexamined prejudice even within elements of the judiciary.

  • 37. Mike in Baltimore  |  January 17, 2014 at 2:50 pm

    Try http://en.wikipedia.org/wiki/Strict_scrutiny (found by searching for 'scrutiny', then 'strict scrutiny').

    Granted, the article is about strict scrutiny, but other forms of scrutiny (rational and intermediate) are also discussed, with links to discussions on Wikipedia of those concepts.

    According to the article, the original concept of scrutiny came about before WW II: "The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in Footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products Co. (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government's actions valid was Korematsu v. United States (1944), in which the Court upheld the exclusion of Japanese Americans from designated areas during World War II."

    It was from that footnote that a formalized definition of the levels of scrutiny developed. It took until the Korematsu case in 1944 for the definitions to be fleshed out, with later changes in definitions.

    So yes, it took quite a few years for the concept to develop, then more years for it to be defined, then even more years for the definitions to adjust to what we now know them as.

  • 38. lzambeni  |  January 17, 2014 at 2:13 am

    “Based on the Windsor I decision, it seemed likely that the Supreme Court would address Baker‘s presidential [sic] value. However, no Justice mentioned Baker in any part of the Windsor decision.”

    I think the author meant "precedential" not "presidential". Great article otherwise. Hopefully Kern's bitchslap to SCOTUS will push them in the right direction in the not too distant future!

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  • 40. Rick O.  |  January 17, 2014 at 8:29 am

    About Judge Kern's possible "tone" about us gays (esp. after Shelby's Utah ruling) – the first thing I did was look up age. Shelby is early 40's, Kern is late 60's, at least. There is a huge difference in attitudes and assumptions on the part of both gays and straights + or – age 50.

    Also place:. OK is not UT. It would have been a slave state had it not been Indian Territory, it is incredibly redneck/fundamentalist,and unlike Mormons they get liquored up and violent.

    Weatherwax may be wrong worrying about "special rights" LEGALLY, but I'm guessing he's as old as I am and remembers back to Anita Bryant. "Special rights" was probably the single most effective and devastating propaganda one-liner ever devised – the phrase that launched a thousand gay-bashings – and it will be used, willy-nilly,again. It will take a huge education campaign to convince people still fuming about African Americans that protected classes do not equal NOT special rights.

    It irks me the Supremes live comfortably in D.C. and pretend not to have a clue about animus (Roberts verbal jokes about our supposedly ample political power revealed his willful ignorance). Judge Kern in Tulsa may not be sure what to do with the uppity homos, but he knows first hand animus is what animates his state. So it's great progress.

  • 41. Rick O.  |  January 17, 2014 at 8:33 am

    Oops – please disregard double negative NOT before special above.

  • 42. JayJonson  |  January 17, 2014 at 8:49 am

    Good point about Roberts' absurd remark about our political power. He should come down to Louisiana and Mississippi or even Texas to see how much political power gays and lesbians have.

  • 43. Anthony  |  January 17, 2014 at 9:46 am

    He sounded so confident during oral argument and then he essentially got bitchslapped when Kennedy announced the DOMA opinion. I do think he will throw in the towel by the time the next case comes along.

  • 44. Bruno71  |  January 17, 2014 at 12:44 pm

    I'm sure if he goes home to Texas, he won't see anything to change his mind. Maybe his lesbian cousin needs to bend his ear a bit more on the issue, but for now he just feels the courts can stay out of it and the gays will be fine. Someone should also ask him if he thinks gays have the political power in Texas to change their situation, given that Republicans own that state for the most part. What is Justice Roberts' clever roadmap for gay political power in Texas?

  • 45. Mike in Baltimore  |  January 17, 2014 at 3:11 pm

    If the GLBT community has political power, how come more than 30 states have laws and/or constitutional amendments that prohibit us marriage; why do almost 30 states directly not prohibit the firing of GLBTs just because they are, or are perceived to be, GLBT; why did it take a lawsuit to overturn at least part of DOMA, etc.? Why are the states of Utah and Oklahoma appealing the courts overturning their unconstitutional laws passed without support from the GLBT community?

    Does Roberts (or anyone else) think we are fighting these and other such laws 'just for the fun'? If that is the case, isn't that a misuse of the judicial process, and why no sanctions for such misuse?

  • 46. Richard Weatherwax  |  January 17, 2014 at 11:25 am

    I do recall Anita Bryant. Here are some quote from her:

    "What these people really want, hidden behind obscure legal phrases, is the legal right to propose to our children that theirs is an acceptable alternate way of life."

    "If gays are granted rights, next we'll have to give rights to prostitutes and to people who sleep with St. Bernards and to nail biters." http://en.wikipedia.org/wiki/Anita_Bryant

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