2014-NOV-12: U.S. District Court Judge Carlton W. Reeves comments on 6th Circuit Courts ruling on SSM:
In his decision, Judge Reeves commented on the ruling by Judge Jeffry Sutton in the 6th Circuit Court. This was the only Circuit Court ruling to date that supports a ban of same-sex marriage. Judge Sutton suggested in his decision that same-sex couples wait until the state repeals the marriage ban sometime in the future, rather than try to bring about change through the courts. Judge Reeves commented in his ruling:
"In upholding four states' same-sex marriage bans, [the Sixth Circuit Court of Appeals] expressed optimism that voters would change their minds on same-sex marriage, and argued that the courts should give them that opportunity. As that court wrote, 'from the claimants' perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past—if the federal courts will allow that future to take hold.'
The undersigned sees the judicial role differently. The courts do not wait out the political process when constitutional rights are being violated, especially when the political process caused the constitutional violations in the first place. The framers did not set up Article III to yield to 'the superior force of an interested and overbearing majority.' The Federalist No. 10. By honoring its obligation conferred by Article III [of the federal Constitution], the court does not diminish the political process. Rather, the court holds fast to the fundamental belief that constitutional principles that safeguard liberty and guarantee equality are not subject to the ballot. ..."
"Under the Fourteenth Amendment, a state may not 'deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' U.S. Const. amend. XIV, § 1. Although this text has not changed in nearly 150 years, our understanding of it has changed dramatically. Before turning to today's issue, then, it is worth considering some of those historical changes. ..."
"These are just a few examples. There are others. Even an abbreviated history shows that millions of Americans were once deemed ineligible for full Fourteenth Amendment protection. But we now take for granted that racial discrimination is wrong, that women cannot be excluded from the professions, and that gay and lesbian citizens are entitled to the same privacy in their sex lives that heterosexual citizens enjoy. We changed. These issues have faded into the background of everyday life.
The judiciary plays a unique role in this process. The above cases were not put to a vote of the American people. The votes had already been counted; the legislatures had already acted. Most voters thought nothing wrong with the status quo, unconstitutional as it may be.
This was always a risk of our representative democracy. James Madison wrote that 'measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.' The Federalist No. 10. He and his colleagues 'knew times can blind us to certain truths.' Lawrence [v. Texas], 539 U.S. at 579. Mistakes would be made.
In their wisdom, though, they created a co-equal branch of government where aggrieved persons could try to show 'that the laws once thought necessary and proper in fact serve only to oppress.' The judiciary has been charged with hearing these claims for more than two centuries. The will of the majority is usually affirmed. Every now and then, however, the majority has done an injustice to a person's rights, and the case must be resolved in his or her favor." 1 [Some footnotes and internal citations removed from the original]"
2015-JAN-09: U.S. 5th Circuit Court of Appeals holds hearing on same-sex marriage bans in Louisiana, Mississippi and Texas:
A three-judge panel of the 5th Circuit Court held hearings on JAN-09 on the same-sex marriage bans in all three of the contiguous states under its jurisdication: Louisiana, Mississippi and Texas.
At the time of the hearing, same-sex couples were able to marry in the District of Columbia, and in 37 out of 50 states. At least one lawsuit to nullify a ban is active in each of the 13 states that still prohibit same-sex marriage. The states with bans lie geographically in three rows:
one north-south row of three states in the mid-west from North Dakota to Nebraska;
one north-south row of four states from Michigan to Tennessee.
one east-west row of six states from Texas to Georgia.
The hearing lasted for three hours. Of the three judges on the panel, James Graves and Patrick Higginbotham asked many questions that were consistently skeptical of the states' bans, while asking few questions of the plaintiffs' lawyers. The lead attorney for the Louisiana defendants was Kyle Duncan. He was formerly the solicitor general for Louisiana and more recently is from the Becket Fund for Religious Liberty. He based his defense of the marriage bans on two principles:
States have the right to define eligibility for marriage within their boundaries without interference from the federal government or Constitution. He argued that the main purpose of marriage is procreation, and that same-sex couples, by themselves, cannot conceive. Therefore, they should be prohibited from marrying.
Judge Higginbotham asked why the procreation argument should be of paramount importance while the states allow incarcerated persons to marry a person of the opposite gender, even while serving a life sentence without the possibility of procreating.
Same-sex marriage is a new development -- a "novel institution." Voters and legislators in the three states need more time to understand it and detect any adverse affects it might have on the economy and culture. Only a decade has passed since Massachusetts became the first state to legalize marriage for same-sex couples. Duncan argued that the three states:
"... should not have to go the way of other states that are involved in this social experiment."
Judge Graves commented:
"So your argument is... so since we don't know, we should fear the unknown and therefore we should ban it?"
It is important to realize that Massachusetts continues to have the lowest divorce rate of any state in the U.S. Thus, legalizing marriage for same-sex couples has not had a major adverse affect on opposite-sex marriages in that state.
The lead attorney for plaintiffs, Camilla Taylor from the LGBT rights group Lambda Legal, argued in court:
"There's no dispute in this case the marriage ban harms lesbian and gay couples. But also they're deprived of dignity in and equality in a way that harms people to their very cores."
After the hearing, she commented:
"We feel very optimistic coming out of court today. There seemed to be some significant discomfort [among the three-judge panel] with the unequal treatment same-sex couples and their children faced in all three states."
Stephen Griffin, a professor at Tulane Law School who specializes in constitutional law, observed the hearing. He said that judges:
"Higginbotham and Graves seemed like they're ready to strike ... [the same-sex marriage bans] down. It's not easy to predict what a court will do, but that really seemed like a 2-1 panel.
Gene Mills of the Louisiana Family Forum strongly opposes marriage equality, He expects that the 5th Circuit Court will uphold the same-sex marriage bans in the three states. He feels that the ultimate decision should be left up to the people of the states. He said:
"If you take that choice away from the people, you remove their opportunity to under [sic] the deliberative process and to weigh in. When that process is followed, that's when America generally accepts the opinion and we move forward."
However, there was a very similar lawsuit that was decided by the U.S. Supreme Court in 1967. In the case Loving v. Virginia, the high court overturned miscegenation laws in 16 contiguous states located in the south-eastern United States. This legalilzed interracial marriages throughout the U.S. If the high court had not acted in 1967, decades would probably have passed before all 16 states would have repealed their bans. In fact, the miscegenation laws remained on the books of many states even though they had been nullified by the Supreme Court. Alabama was the last state to repeal their ban in the year 2000, over three decades after the Loving v. Virginia ruling. If the same-sex couples were to wait for the legislative process in Louisiana, Mississippi, and Texas to legalize their marriages, they could continue to be regarded as "legal strangers" by their state into the 2040s before their states might recognize their marriages and give them and their children protections and benfits that opposite-sex couples automatically receive from their state.
Comments by participants and observers after the hearing:
Public opinion poll:
The Times-Picayune newspaper in New Orleans, LA, conducted a poll of its web site visitors. They received 837 responses:
82% favored legalizing marriage for same-sex couples.
13% favored Louisiana continuing the ban on same-sex marriage and on civil unions.
Data from this poll is not of great statistical significance because those who voted were self-selected and probably do not represent the opinions of the general public. Times-Picayune commented that their poll:
"... is not a professional poll conducted with scientific sampling methods and defined margins of error."
Most of the comments posted by readers of the Times-Picayune poll article were in favor of marriage equality. Some typical comments are:
"Roberto333" posted: "Marriage is about Love. Most heterosexuals equate being Gay to just sex. If that is true then heterosexuals have alot of sinning under their belts. They've been performing adultery, pedophilia and, incest long before the Gays...idiots."
"scotiabob" posted: "Louisiana should end this version of Southern stupidity before they waste any more money defending the undefendable. Allowing gay marriages would be a considerable boost for the state economy, as well as allowing the gay citizens of Louisiana to finally live their lives without feeling like second class citizens."
"Crown-Royal" posted: "But Gawd, Jeebus, Holy Spirit, the Babble oops Bible, they'll burn in hades, it's all Satin, it's all the Dave-ul."
"jayda70072" posted: "... how about because its morally wrong, gross, and spiritually wrong, and gross, and i for one would like to teach my children better and they dont need to see this grotesque behavior! if a little child knows this is wrong, then hello.....something is wrong!"
Jon Palmer responded: "No, if a little child THINKS same sex marriage is wrong, then hello.......something is wrong--- that they are being taught bigotry and intolerance. Basically, those children are being mentally abused. Be a good parent, Jayda. DON'T abuse them by teaching them to be bigots."
Further developments are inevitable
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Mississippi Judge Striking Down Marriage Ban Explains the Role of Courts," People for the American Way, 2014-NOV-26, at: http://blog.pfaw.org/
"Louisiana gay marriage ban met with skepticism in appeals court," The Times-Picayune, 2015-JAN-10, at: http://www.nola.com/
Andy Grimm, "What should happen to Louisiana's gay marriage ban? Take our reader poll,"The Times-Picayune, 2015-JAN-09. at: http://www.nola.com/