GOPers Vow To Defy SCOTUS Over Gay Marriage

The New Nullification Crisis: GOPers Vow To Defy SCOTUS Over Gay Marriage

ByTIERNEY SNEEDPublishedJUNE 16, 2015, 6:00 AM EDT 19527 Views
Ahead of a potentially historic Supreme Court ruling, leading Republicans are vowing to defy any decision that sanctions same-sex marriage and are challenging the very legitimacy of the high court.

With a decision in Obergefell v. Hodges expected before the end of June, conservatives are confronted with what was only a few years ago a nearly unthinkable possibility: a Supreme Court decision that decisively makes same-sex marriage a constitutional right.

Fearing a huge setback to their cause, opponents of same-sex marriage, including some of the major contenders for the 2016 GOP presidential nomination, are darkly warning that they will not “honor” an adverse Supreme Court decision. Some are calling for civil disobedience. Others are moving to strip the Supreme Court of its authority to decide whether gay couples should be allowed to marry, while others have questioned whether the court has that jurisdiction in the first place. Sen. Ted Cruz (R-TX) has said that such a decision would be “fundamentally illegitimate.”

Those who are merely calling for a new constitutional amendment to enshrine marriage as between one man and one woman now seem almost quaint in their desire to use the ordinary constitutional process to counter the Supreme Court.

Here are some of the leading proponents of the new nullification:

Rick Santorum
Former Sen. Rick Santorum, on NBC’s Meet the Press last month, vowed to fight a Supreme Court decision in favor of same-sex marriage: “We’re not bound by what nine people say in perpetuity.”

“I think it’s important to understand that the Supreme Court doesn’t have the final word,” Santorum told viewers. “It has its word. Its word has validity. But it’s important for Congress and the president, frankly, to push back when the Supreme Court gets it wrong.”

Santorum is among the signers of the anti-gay marriage pledge being circulated by a group associated with the website DefendMarriage.Org. The group recently placed a full-page ad in The Washington Post with an open letter to the Supreme Court promising civil disobedience if the court struck down bans on gay marriage.

“We will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman,” the letter said. Its originator, Baptist pastor Rick Scarborough, has promised his fellow signers — some 50,000 people by the website’s count — will “resist all government efforts to require them to accept gay marriage, and they will accept any fine and jail time to protect their religious freedom and the freedom of others.”

Mike Huckabee
The former Arkansas governor also signed the DefendMarriage.Org civil disobedience pledge, and suggested that if elected president, he would ignore a Supreme Court ruling in favor of same-sex marriage.

“Presidents have understood that the Supreme Court cannot make a law, they cannot make it, the legislature has to make it, the executive branch has to sign it and enforce it,” Huckabee told Fox News’ Chris Wallace. “And the notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government.”

Ted Cruz
In addition to proposing the more temperate course of a new constitutional amendment to limit marriage to straight couples, Cruz introduced a bill in the Senate that would bar federal courts from weighing in on marriage until that amendment was passed, Bloomberg reported in April.

“If the court tries to do this it will be rampant judicial activism. It will be lawlessness, it will be fundamentally illegitimate,” he said during an Iowa campaign stop earlier this spring.

Ben Carson
Ben Carson has expressed doubt that a Supreme Court decision favoring same-sex marriage would need to be enforced.

“First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch,” Carson said in May. “So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law. And that’s something we need to talk about.”

Steve King
Like Cruz, Rep. Steve King (R-IA) has also introduced legislation prohibiting courts — including the Supreme Court — from considering the question of same-sex marriage, by taking on Article III of the Constitution.

“We could pass this bill before the Supreme Court could even hear the oral arguments, let alone bring a decision down in June,” King said when introducing the bill in early April. “That would stop it right then, there would be no decision coming out of the Supreme Court. This is a brake, and whether we can get the brake on or not between now and June, that we don’t know.”

Tom DeLay
In addition to signing the civil disobedience pledge, the former GOP House majority leader has advocated for states to ignore a Supreme Court ruling in favor of same-sex marriage.

“A ruling by the Supreme Court is nothing but an opinion if the legislative branch and the executive branch do not enforce it,” DeLay said on Newsmax TV’s The Steve Malzberg Show. “Not only that, if the states would just invoke the 10th Amendment and assert their sovereignty, they can defy a ruling by the Supreme Court. It’s in the Constitution. We can tell the court what cases they can hear.”

Texas State Rep. Cecil Bell
Texas Democrats thwarted a bill sponsored by Republican state Rep. Cecil Bell that would have prohibited state and local governments from recognizing, granting or enforcing same-sex marriage licenses. Nevertheless, when the statehouse was considering the bill, Bell was skeptical that a Supreme Court ruling would bring same-sex marriage to the state.

“If the Supreme Court sets a precedent that says same-sex marriage is a legal precedent that states should adhere, that states will suddenly flock to that precedent and begin to conform…the reality is that when the Supreme Court sets precedents, states don’t always adhere to them,” he told TPM at the time. “I am not predicting what Texas will do — but to assume that Texas will suddenly change how it does business is presumptuous.”

Alabama State Supreme Court Chief Justice Roy Moore
Alabama’s top judge can boast of the coveted accomplishment of having already defied the Supreme Court when it allowed same-sex marriage to become legal in his state. Right before a federal ruling striking down the state’s marriage ban was to take effect, state Chief Justice Roy Moore issued an order barring local probate judges from issuing same-sex marriage licenses.

“When federal courts start changing our Constitution by defining words that are not even there, like marriage, they’re going to do the same thing with family in the future,” he later said, doubling down on his order. “When a word’s not in the Constitution, clearly the powers of the Supreme Court do not allow them to redefine words and seize power.”

Justice Ginsburg Eviscerates The Case Against Marriage Equality In Just Five Sentences

Justice Ginsburg Eviscerates The Case Against Marriage Equality In Just Five Sentences
During Tuesday’s marriage equality arguments in the Supreme Court, several of the Court’s conservative members suggested that same-sex couples should not be given equal marriage rights because these couples have not enjoyed those rights for most of the past. As Justice Antonin Scalia summed up this argument, “for millennia, not a single society” supported marriage equality, and that somehow exempted same-sex couples from the Constitution’s promise of equal protection of the law.
Not long after her conservative colleagues raised this argument, however, Justice Ruth Bader Ginsburg explained exactly why marriage was long understood to be incompatible with homosexuality in just five sentences:
[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.
Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles. According to Sir William Blackstone, an eighteenth century English jurist whose works are still frequently cited today to explain the common law principles we inherited from our former colonial rulers, “[t]he very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.” As late as 1887, fully one third of the states did not permit women to control their earnings. And married women could not even withhold consent to sex with their husband until shockingly recently.
Under the common law, “by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband,” and this consent was something “she cannot retract.” The first successful prosecution in the United States of a husband who raped his wife did not occur until the late 1970s.
So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.
But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

Huffington Post – Marriage Equality’s Giant Leap Forward

Marriage Equality’s Giant Leap Forward
Posted: 06/26/2013 8:19 pm

Today, my marriage to my wife did not change one iota. Our marriage does not need “protecting” or “defending” by anyone — it is exactly the same today as it was yesterday. Tomorrow, it will remain the same. Contrary to the claims of opponents, the Supreme Court’s landmark rulings on the two cases before it involving the rights of gay people to get married has had and will have no effect whatsoever upon my marriage.

That may sound like a strange place to begin the celebration over the Supreme Court’s rulings in Hollingsworth v. Perry and United States v. Windsor, but it’s a key point if only because it has been used as such an erroneous argument in favor of banning marriage equality. No heterosexual’s right to marry the person of their choice is any different now than it was yesterday — proving the opposition wrong on one of their main arguments (consider the name of the federal law, for proof of this: “Defense Of Marriage Act”). But the whole argument over marriage equality is so personal, I thought I’d start with my own personal take on it: the sun will rise tomorrow, I will be married to the same wonderful woman, and nothing will have changed. Nothing.

However, for a whole lot of gay couples, life will have gotten one whale of a lot better. Today’s Supreme Court rulings are a giant leap forward along the path to fully equal rights. The federal government will now recognize marriages which their states recognize, and the barriers to equal treatment under federal law have disintegrated for good. That is indeed something to celebrate. Which is why I’m going to stop using the term “gay marriage” ever again in my writing. There is no “same-sex” and “opposite-sex” marriage anymore. There is just marriage, period. From now on, the phrase I’ll be using is “marriage equality,” because we’re all now equal under federal law — as we should be under state law, as well.

After the initial euphoria wears off a bit, though, the question will remain where we go from here. Because the battle’s not over yet. The Supreme Court, as I’ve been predicting, did not issue the total Loving v. Virginia victory that gay rights supporters were truly hoping for. Gay marriage was not defined today as a basic and inherent (or “unalienable”) right under federal law. Such a ruling would have overturned laws in almost three-fourths of the states and mandated marriage equality in all 50 states. The Supreme Court obviously didn’t want to move that fast.

This is not to say that they won’t get there eventually. But it’s going to take some time and it’s going to take some work, on both the political and legal fronts. Legally, U.S. v. Windsor struck down Section 3 of the Defense Of Marriage Act — the part which defines in all federal law that “marriage” only means one-man-one-woman, period. But Section 2 of the law wasn’t affected by today’s ruling, and is still federal law. This section reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Quite plainly, this section legalizes “separate but equal” treatment of marriage. It is discrimination writ into federal law. It will be challenged in court. The core of this challenge will reference the relevant passage from the United States Constitution. Article IV, Section 1 reads, in full:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 2 begins with:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Section 1 allows Congress to set the rules for how states treat official records from other states. Congress has done so in Section 2 of DOMA. However, they have done so in order to deny rights, quite obviously. So this is where the constitutional battle will be joined in the next big marriage equality case. This case will be the equivalent of Loving v. Virginia, which declared all state laws banning interracial marriage unconstitutional.

Say (to use a favorite phrase of the marriage equality opponents) Adam and Steve get married in California. Steve then gets a great job in Austin, and they move. Sadly, they decide to divorce. But Texas doesn’t recognize their marriage as being legal, so it refuses to allow them to file divorce papers. Adam and Steve v. Texas will then travel upwards through the state and federal court systems until it reaches the United States Supreme Court.

This is all going to take a number of years. The real question in this (fictional, for now) case is how will the Obama Department of Justice react? Will it refuse to defend Section 2 of DOMA in court at all? What will that eventually mean? The Supreme Court today ruled one section of DOMA unconstitutional even though Obama refused to defend it, so it’ll probably eventually get heard and decided by the high court, but questions of “standing” may allow the court to put off such a sweeping decision until they feel ready to take the final step towards marriage equality. Proposition 8 passed in 2008, remember, so Adam and Steve v. Texas at the Supreme Court may be anywhere from five to ten years away.

That’s a long time to wait, but things won’t be frozen in stone in the meantime. Instead, the focus will shift to the political realm. The good news is that, in politics, the tide has turned in a big way. I confidently predicted earlier this year that the tipping point had been reached on marriage equality, and that we would now be moving forward and not backward. To put this another way, Democrats are about to start confidently winning the “culture wars,” after almost a quarter-century of losing badly on this front.

When the state of Hawai’i indicated it might actually allow gay people to marry, the conservative backlash was ferocious. For two decades, they successfully put anti-marriage-equality measures on the ballot in every state they could. Up until last November, all of these ballot initiatives won. But in 2012, marriage equality won at the ballot box for the first time, in multiple states. Conservatives have been so successful in their own efforts that now they don’t have any states left to pass more initiatives — once you’ve banned something, there is no reason to ban it again, after all. At the high-water mark, three-fourths of the states had anti-marriage-equality laws on the books. But this is the tide which has turned — and we’re never going back. In fact, the number of states allowing full marriage equality is only going to grow.

This isn’t to suggest that it’ll be an easy fight in each state. Every ballot initiative or proposition isn’t going to win the first time around, either. But the entire dynamic has changed. What used to be a very potent “wedge” issue on the Right is now going to become an equally-potent wedge issue for the Left. Think about it: the Left will now pick and choose the states where referenda battles will be fought. The Left will now benefit from having the issue on the ballot. Even if it doesn’t pass, the Left will likely boost their voter turnout (especially among young voters) in states which are voting on the issue.

That is an enormous sea-change, and it’s why I made the “tipping point” prediction earlier in the year. The political calculus is changing — fast. President Obama became the first person to run for president while supporting marriage equality. In his second election, of course — in his first, neither he nor his biggest Democratic contender could bring themselves to support marriage equality (for fear of losing votes, assumably). But Obama didn’t just mark the first time a Democratic presidential candidate fully supported marriage equality, he also marked the last time any Democratic nominee will run against marriage equality. There simply is no turning back, at least in the Democratic Party. Even a few Republican office-holders are now seeing the light.

So while we all wait for the perfect test case to come along which will toss anti-marriage-equality laws on to the same ashcan of history that contains “separate but equal” and the word “miscegenation,” there will be political work to do and victories to achieve. Hollingsworth v. Perry and United States v. Windsor are going to be rallying cries for full marriage equality for a few years to come, but in the end the case that future history students learn about may in fact be whatever Adam and Steve v. Texas case the court has in its near future. But the only way the Supreme Court is ever going to issue a Loving v. Virginia ruling to strike down what remains of DOMA is if the entire country is clearly and irrevocably politically ready for such a momentous decision. And that means more states changing their laws in the meantime.

The good news is that, from this point forward, we’re going to be winning more victories than the opponents of marriage equality. A lot more victories, in fact. And winning them will have the added amusement of turning a wedge issue which has been used against Democrats for decades against Republicans. Call it icing on the wedding cake.

[Program Note: Because marriage equality is such a personal subject, I began writing today by reviewing what I had previously written on the subject over the last seven years. But I didn’t want to clutter up the article above with a bunch of self-referential links. So instead, I’m providing them here in a bunch, if anyone’s interested in reading about my own evolution on the subject. The very first blog post I ever wrote, almost exactly seven years ago, used the term “gay marriage” in its third sentence. Since then (in chronological order), I have revisited the subject of marriage equality many times, most notably when I came out in favor of polygamy, polyandry, polygyny, or polyamory (take your choice) as the next marriage equality issue of our time, quite seriously asking the question: “If you support gay marriage, could you also support polygamy? If so, why? If not, why not?” When the Proposition 8 case first began to move, I mistakenly predicted that it would indeed be a sweeping win for marriage equality, back in 2010. Last year, I began making the observation that Democrats were set up to begin winning the culture wars. By the end of the year, after the two cases had been taken up by the Supreme Court, I was cautioning that the DOMA case was much more likely to get a ruling with a sweeping impact than the Proposition 8 case. In March of this year, I predicted that America had indeed reached a tipping point on marriage equality from which there would be no return. The same week, I wrote of my own personal evolution on gay rights in general, and how as recently as 2005 I was wrong on reading the politics of it being a good issue for Democrats. In the last few months, I wrote again about how the Republican wedge issues were losing their edges, and how I was cautiously optimistic about the rulings the Supreme Court announced today. Not surprisingly, the closer we got to today’s ruling, the better my predictions got as to what was going to happen. I join with all marriage equality supporters across the land in celebrating today’s victories, and optimistically look forward to fighting the good fight in state after state until we achieve true marriage equality across the land for everyone!]

Queerty – Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

A note on LGBTQ@Facebook reveals that the social-media giant will be filing a brief this week in opposition to the Defense of Marriage Act and Proposition 8, both of which are before the Supreme Court in March:

This week, Facebook is proudly joining hundreds of businesses in submitting briefs to the U.S. Supreme Court supporting same-sex marriage. The briefs explain to the Court how the Defense of Marriage Act and California’s Proposition 8 discriminate against employees in same-sex marriages and create undue burdens on companies and employees.
We’ll post links to both filings on the LGBTQ@Facebook page when they are available.
That’s a status update we can get behind!
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ON: FEB 26, 2013



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