A lot can happen in a decade. The Supreme Court’s decision to overturn Section 3 of the Defense of Marriage Act (DOMA) and to dismiss the appeal of Proposition 8 came 10 years to the day after its Lawrence v. Texas decision. June 25, 2003, you could be arrested for intimate acts with your same-sex partner. Now, you can marry him or her in multiple states, and the federal government has to recognize it.
Justice Kennedy’s trifecta. In addition to penning United States v. Windsor and Lawrence v. Texas, Kennedy wrote the Romer v. Evans decision overturning a Colorado ban on laws protecting LGBT citizens. Technically, his decisions are part of the Rehnquist and Roberts Court eras, but on LGBT rights, history might as well call it the Kennedy Court.
Justice Scalia makes the best arguments for marriage equality. Seriously. He just does it in his dissents. Given the reasoning behind Lawrence, Scalia asked in his dissent “… what justification could there possibly be for denying the benefits of marriage to homosexual couples …” He goes one further in his dissent to Windsor, using word swaps to show precisely how it could be used to overturn state bans on same sex marriage:
“DOMA’s This state’s law’s principal effect is to identify a subset of state sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal…And DOMA this state law contrives to deprive some couples married under the laws of their state enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”
The Supreme Court did not declare Prop. 8 unconstitutional. Neither, officially, did the Ninth Circuit, as their decision was vacated by the Supreme Court with orders to dismiss the case on lack of standing. In the end, only Judge Walker ruled Prop. 8 unconstitutional. There just appears to be no one left to argue with him.
We haven’t set a date yet. It will take a finite amount of time for the Ninth Circuit to do their paperwork. Then it will be up to Gov. Brown and Attorney General Harris to figure out how to stop enforcing Prop. 8. We’ll see which clerks and counties file zany lawsuits claiming they shouldn’t be covered by Walker’s decision.
A new way to marriage equality? If I wanted to get married in a state with a fair minded governor and attorney general, I might just file a case like Perry. Despite clear language in the Windsor decision that it was not meant to apply to state bans, it could be hard for a district judge to not follow Walker’s, and now Scalia’s, reasoning. Assuming the governor and attorney general don’t appeal, and the state has no specific law to delegate its interest to another party, would seem to be over, Prop. 8 style. Oregon, here we come?
Women’s rights had a good morning, too. Using a real, honest to goodness talking, standing, not-peeing 13 hour filibuster, Texas state Sen. Wendy Davis managed run out the clock on the Texas legislative session, temporarily killing a Texas bill to severely limit reproductive rights.
