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Religious Tolerance logo

North America attainment of gay marriage
(a.k.a. same-sex marriage, SSM), LGBT equality etc.

Part 2 of two parts:
2016-FEB: Activities involving LGBT equality
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We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay.

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Sustice Scalia 2016-FEB-13: Justice Antonin Scalia has died:

Justice Scalia died in his sleep while on a hunting trip in Texas. He went to bed on Friday evening, saying that he wasn't feeling well. He never woke up. He was 79 years-of-age.

The U.S. Supreme Court's Chief Justice John Roberts said:

"He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family."

He was nominated by President Reagan and had served three decades on the High Court.

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Before his death, the U.S. Supreme Court (SCOTUS) was severely divided between conservative and liberal justices. They differ greatly in their interpretation of the U.S. Constitution, either

  • As a fixed document whose meaning never changes from the time that it or its amendments were written until now. The task of a Justice is to interpret each clause in the federal Constitution as the original signers understood it to mean.


  • As a living document that evolves as the culture changes. They interpret the words as they are viewed in today's culture.

A good example of this division is seen in the Court's recent decision of 2015-JUN-26. In Obergefell v. Hodges, the U.S. Supreme Court legalized gay marriage everywhere in the U.S. except for the territory of American Samoa. The majority of five out of nine Justices ruled on the basis of the 14th Amendment to the U.S. Constitution. It states that people are to be treated equally by governments. On the topic of two adults of the same sex marrying:

  • When the 14th Amendment was ratified on 1868-JUL-09, if one asked the author(s) and the lawmakers who passed or ratified it whether the Amendment would allow two women or two men to marry, the result would probably be laughter and total rejection. Same-gender sexual behavior was a criminal act at the time. Thus the four consistently conservative Justices, who viewed the Constitution as fixed, would lean towards keeping gay marriage unavailable in the 14 states and all five territories where it was banned in mid-2015.

  • During this century, a near consensus of those researchers into human sexuality, who are not religious conservatives, have agreed that homosexuality, heterosexuality and bisexuality are three normal, natural sexual variations that are fixed in adulthood. Same-gender sexual behavior among adults has been decriminalized. Gay marriage equality had been attained in most states and the District of Columbia. Over 60%of U.S. adults now support allowing lesbians, gays and bisexuals to marry same-sex partners. Perhaps because of these factors, the four consistently liberal Justices who viewed the Constitution as a living document voted to make gay marriage available across the country.

  • Justice Anthony Kennedy is often referred to as a swing vote in some matters. Elizabeth Slattery, writing for the conservative group The Heritage Foundation said:

    "For many of the highest-profile U.S. Supreme Court cases, it all comes down to one man. ... his ideology places him squarely in the middle of the two wings of the court. He often sides with the conservative justices in civil rights and campaign finance cases ... but he frequently casts the deciding vote in cases advancing socially liberal causes ..." 1

    As was predicted by most SCOTUS watchers, Justice Kennedy voted with the four liberal Justices to produce a 5 to 4 vote in Obergefell v. Hodges. Marriage equality became the law of the land, except for one territory in the Pacific where SCOTUS rulings do not necessarily apply.

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As can be expected, Justice Scalia's death has generated a firestorm in Washington concerning the selection of a replacement Justice. Stephen Dinan and Dave Boyer, writing for The Washington Times said:

"Senate Majority Leader Mitch McConnell [R] said Saturday that the Senate should wait until a new president is elected to confirm a replacement for Justice Antonin Scalia, whose sudden death Saturday shook Washington and threatened to reshape the 2016 presidential race.

Democrats said that with 11 months left in President Obama’s tenure, the Senate has enough time -- and indeed an obligation -- to confirm a replacement. Senator Harry Reid, the top Democrat in the chamber, said it would be 'shameful' to put off a replacement that long. ..." 2

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What has happened in the past when a Justice resigned or died during a presidential election year?

Opinions differ:

  • Senate Judiciary Committee Chairman Charles E. Grassley (R) said:

    "The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year. Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice." 2 [Emphasis not in original]

  • Amy Howe, writing for SCOTUSblog, said:

    "The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.  During that interval, there were several nominations and confirmations of Justices during presidential election years. 3 [Emphasis not in original]

    She continued her article by listing nominations and subsequent confirmations of SCOTUS Justices: two during 1916, and one each in 1912, 1932, 1940, and 1987. In addition President Eisenhower made recess appointment to the court during a presidential election year in 1956.

At first glance, it might appear that one of the above is lying. However, Senator Grassley's use of the term "standard practice" may give him enough wiggle room so that both Grassley's and Howe's statements are true --- sort of.

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Reactions to Justice Scalia's death:

Democratic presidential candidate Hillary Clinton (D) issued a statement saying:

"My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing. I did not hold Justice Scalia’s views, but he was a dedicated public servant who brought energy and passion to the bench.

The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons." 4

President Obama (D) said:

"Obviously today is a time to remember Justice Scalia’s legacy.

I plan to fulfill my constitutional responsibility to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. 2

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What might the future hold?

The current makeup of the High Court includes 8 Justices, composed of: 3 conservatives, 4 liberals and one swing vote. This is an unstable composition for the court because of the high possibility of a 4-4 tie during future rulings.

The responsibility to replace a Justice is shared between the President and the Senate. The president selects and nominates a candidate. The Senate reviews the candidate's qualifications and votes on whether to confirm the nomination. Over the past four decades, this process has taken an average of 67 days.

On 2016-MAR-16, President Obama nominated Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit to replace Jusice Scalia. As of 2016-SEP-09, 177 days after the Senate received the nomination, it has not acted on its constitutional responsibility to hold hearings on the nominee. 5

The future is impossible to predict:

  • If a replacement for Justice Scalia is not confirmed by early 2017, and a Republican President is elected in 2016-NOV, and the Senate remains in Republican control, then a very conservative Justice would probably be added to the Court. The court would continue much as it has in the past until one or more subsequent Justices are replaced. That might move the court philosophy far to the right for decades. Future cases involving equality for the LGBT community would be in serious doubt. That would be in spite of indications that the public and the makeup of Congress will be moving towards the left during that interval. Political conservatives would probably make every effort to overturn the SCOTUS ruling in Obergefell and eliminate gay marriage in at least some states and territories.

  • If a replacement for Justice Scalia is not ratified by early 2017, and a Democratic President is elected in 2016-NOV, and the Senate comes under Democratic control, then a liberal Justice would probably be added to the Court. The Court would experience a sudden lurch to the Left. Future cases for the LGBT community would probably increase equality. This would probably be of greatest importance to the transgender and transsexual communities who have become the focus of discrimination by religious, social and political conservatives since Obergefell was decided in mid-2015.

  • Otherwise, it is impossible to predict future trends in the high court.

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More news, and conflict, is inevitable.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Elizabeth Slattery, "Is Kennedy Still the Swing Vote on the Supreme Court?," The Daily Signal, 2015-JUN-26, at:
  2. Stephen Dinan & Dave Boyer, "Republicans rule out replacing Antonin Scalia until new president is elected," The Washington Times, 2016-FEB-13, at:
  3. Amy Howe, "Supreme Court vacancies in presidential election years," SCOTUSblog, 2016-FEB-13, at:
  4. Dave Urbanski, "Hillary Clinton and Bernie Sanders Issue Condolences After Justice Scalia’s Death — but One of Them Adds a Scathing Message to Republicans," The Blaze, 2016-FEB-13, at:
  5. "President Obama's Supreme Court Nomination," White House, as of 2016-SEP-09, at:

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How you may have arrived here:

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Copyright © 2016 by Ontario Consultants on Religious Tolerance.
First posted: 2016-FEB-08
Latest update: 2016-SEP-09
Author: B.A. Robinson
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