Obergefell v. Hodges will be heard by the SCOTUS on Tuesday, and basically asks the question, courtesy of The Jurist,
The petition for writ of certiorari [PDF] in Obergefell features two questions presented, broadly asking: whether the Fourteenth Amendment require a state to license a marriage between two people of the same sex; and whether the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Previously stated view here. World Religion News summarizes religious reaction:
Over 7,500 pages have been submitted for the cases that are to be held this month. Obergefell v. Hodges alone has the highest number of filings seen since the 2012 Affordable Care Act case. The briefs were submitted by those who were for it, as well as those against it. Among the many groups to submit briefs, the US Conference of Catholic Bishops sent in a statement discouraging same-sex marriage and promoting traditional marriage.
The largest brief was from the President of the House of Deputies of the Episcopal Church. It was signed by many different groups, including the Union for Reform Judaism, the United Church of Christ and the Unitarian Universalist Association. Many religious groups in support of same-sex marriage said that not all views speak for all religions, adding that thousands of historic Christian leaders have views that challenge the old opinions of homosexuality. Others emphasize the number of Americans who feel their faith compels them to accept others, including LGBT citizens. Many republicans wrote that “the marriage bans challenged here target gay and lesbian couples, and their families, for injurious governmental treatment.”
The Cato Institute, a noted libertarian think tank, sides with the homosexual couples:
Cato has accordingly filed what will almost certainly be our final brief on this issue. Joining with noted originalist scholar (and Federalist Society co-founder) Steven Calabresi and Yale law professor William Eskridge—one of the leading experts on American legal history—we urge the Court to reverse the Sixth Circuit’s decision and finally fulfill the Constitution’s promise of equal protection under law to millions of gay Americans and their children. We argue that the lower court’s ruling was inconsistent with the original meaning of the Fourteenth Amendment’s Equal Protection Clause. The fact that the provision’s ratifiers didn’t automatically or explicitly understand that it would eventually require states to recognize same-sex marriages is irrelevant; all that matters is what it meant in 1868 for a state to “deny to any person within its jurisdiction the equal protection of the laws.” As our brief shows, this language was based on similar language in state constitutions and was widely (and properly) understood as prohibiting the states from passing what’s known as “caste” legislation—laws that create “second-class” citizens with inferior legal rights.
Alliance Defending Freedom, on the other hand, states
Alliance Defending Freedom and the Alabama Attorney General’s Office filed one of those briefs on behalf of the state of Alabama. That brief, filed in Obergefell v. Hodges, explains the rationality of man-woman marriage laws and highlights the significant flaws with, and troublesome implications of accepting, baseless arguments claiming that those laws are constitutionally irrational.
“Marriage between a man and a woman is a universal good that diverse cultures and faiths have honored throughout the history of Western Civilization,” said ADF Senior Legal Counsel Jim Campbell. “How we treat marriage has societal consequences. The wisest course, as these briefs demonstrate, is for the court to resist demands to prematurely end the national debate over the future of marriage.”
Over at Slate, Judith Schaeffer looks back at John Roberts confirmation hearings, rather than staring at her tea leaves:
And among those arguments, one in particular should resonate with Chief Justice John Roberts—that the Supreme Court’s 1967 decision in Loving v. Virginia is clear that the laws challenged in Obergefell infringe on the fundamental right of same-sex couples to marry. In a perhaps long-forgotten portion of his confirmation hearing before the Senate Judiciary Committee in September 2005, Roberts (then a judge on the D.C. Circuit) engaged in an interesting discussion of Loving with then-Sen. Joe Biden, a member of the committee.
In Loving, the court struck down the laws of the 16 states that still prohibited interracial couples from marrying. The court’s ruling had two independent bases in the 14th Amendment: that the laws were racially discriminatory in violation of the equal protection clause and that they denied interracial couples the fundamental right to marry, impermissibly infringing on the liberty interest protected by the due process clause. As a general matter, the Supreme Court has explained elsewhere that “the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ”
There’s been some talk about the historical import of this case, but I am actually a little doubtful, because I see gay marriage to be a runaway freight train – whether or not it wins in court, it will – eventually – win as the will of the people, even if a Constitutional Amendment were to be passed preserving the conservative position, since even those can be reverted – and the initial passing already seems unlikely.
But the tagline on the Alliance Defending Freedom post did bring me to a stop:
Friend-of-the-court briefs address wide-ranging problems with ending marriage debate by judicial fiat
The critical phrase is judicial fiat. It’s a tough question, but forcing views down one’s throat is going to cause resentment to flourish; somehow, it’s more American to get outvoted than it is to lose in court. So, it’s great if the forces for gay marriage were to win in Court, but honestly, I expect Americans to do the right thing – eventually (apologies to Winston Churchill or whoever came up with that thought) – and make gay marriage legal as a matter of choice.
