Apparently there are no Men in Gay Marriages

Thursday the 10th Circuit Court heard the oral argument to Kitchen v. Herbert 2: If You Can't Stand the Heat. Coming this Fall.

Kitchen is the groundbreaking decision out of the District Court of Utah that was the first ruling to overturn a marriage ban after the Windsor and Perry rulings. Yes, Utah.. right? But then again the court does what the constitution wants.

After the Kitchen decision, a tsunami of lower court decision, heretofore known as the Gaydal Wave of 2013, gave deference to the 14th amendment, which of course had previously been turned down by the Burger Court in Nelson v. Baker for "want of a substantial federal question."

The post Perry/Windsor victories cropped up in Utah, New Mexico, Oklahoma, Texas, Michigan Kentucky, Tennessee, and Virginia, while pending cases in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Louisiana, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Puerto Rico, South Carolina, West Virginia, Wyoming, and Wisconsin all look increasingly promising.

When going through all the material to see on a national scale what marriage looks like, I became interested in how the United States got to this point, legally speaking. Before I read Kitchen, I knew the basics of the history. The basic frame work looks like this Loving v. Virginia, Nelson v. Baker, Bowers, Romer, Lawrence v. Texas, Windsor, and Perry. 

In Kitchen there is a great section that summarizes the movement towards equality:

In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow them to marry. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. Id. at 186-87. On appeal, the United States Supreme Court summarily dismissed the case "for want of a substantial federal question." Baker v. Nelson, 409 U.S. 810, 810 (1972).

Utah argues that the Court's summary dismissal in Baker is binding on this court and that the present lawsuit should therefore be dismissed for lack of a substantial federal question. But the Supreme Court has stated that a summary dismissal is not binding "when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975).

Here, several doctrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court's summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to "demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime." 539 U.S. 558, 578 (2003). As discussed below, the Supreme Court's decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage.

The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker "limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage."); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs' equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California's prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.

As discussed above, the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state's ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court "may in the future have to resolve challenges to state marriage definitions affecting same-sex couples." Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest disagreement . . . that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." Id. at 2709 (Scalia, J., dissenting). It is also notable that while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S. Ct. 2652 (2013). Given the Supreme Court's disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial question of federal law.

As a result, Baker v. Nelson is no longer controlling precedent and the court proceeds to address the merits of the question presented here.

The Burger Court's denial of Certiorari in Baker v. Nelson had persistent consequences for the marriage equality movement. No court could accept a 14th Amendment argument except the Supreme Court. The Supreme Court would then have no lower court decisions to argue over. Essentially until laws fundamentally changed, any decision would have had to been de novo. 

The legal shift happened, incidentally after 3 events occurred:

1. The passage of the Defense of Marriage Act in 1996 which were codified under 28 U.S.C. § 1738C and 1 U.S.C. § 7. Among other things, it allowed states to not recognize Gay some marriages. It also forbade the Federal Government from recognizing Gay some marriages.

2. State Constitutional Bans. Under the logic of Baker, the issue at hand applied to statutory bans. So a boost to the advancement of marriage equality came from those who exploited discrimination for political gain. The movement to enact state constitutional bans against same-sex marriage began in 1998 with Alaska and Hawaii amending their constitutions to prohibit gays from  getting all gay with each other, am I right fellas?  

3. Marriage equality in the various states. People were married in one state and later moved to another. The notions of full faith and credit were challenged. Furthermore marriages were not equal at the federal level, due to DOMA.

By the time the courts had reached the Perry/Windsor Era, the legal landscape of America look like the following:

Maximum States Constitutional Bans: 30
States with Marriage Equality at the Time of Perry/Windsor: 9
Maximum States to Ever Have Marriage-Lite: 16 + DC

The legal setting was in place to overturn the Baker v. Nelson precedent.

Which brings me to the oral argument for Kitchen.

Here is copy of the oral argument from the April 10th, 2014 Kitchen v. Herbert hearing. It is three straight white dudes discussing my rights as an individual, so what could be more entertaining and in no way frustratingly patronizing.

The audio file has an issue with the left audio feed, so if it sounds gargled, open your equalizer and push the feed to your right output.

A few quick comments:

What is marriage? Apparently only something that a state has one hundred percent control over (because that's what I concluded from reading Loving v. Virginia.)

According to the defendant, it's better to have all of your rights taken away than to be a second class citizen... great argument.

Why the fuck did the defendants just bring up Maggie Gallagher? Seriously. She is a pointless nobody, with zero credibility. She has no higher degree, no JD, no Phd in psychology, and no expertise. I mean for fuck-sake, why didn't they just cite me or even my mom, or fuck it why not my Westie, who can put together an argument that is more coherent and more germane to the topic than Gallagher.  What a bunch of assholes. fucking fuck fuck. I mean seriously, I am glad this douchebag quoted her, because it is on tape, and he will go down in history as the small-minded bigot who quoted Gallagher and then got his ass handed to him in court and everyone in the world pointed and laughed at his tiny dick.

"[Gay marriage] is too new" to have data on societal effects. And so it will be if we never allow gay marriage.

"The disappearance of the dad." We cannot allow gay marriage because the children won't have a dad.... right. Also did he just try to equate gay couples to single parents?

"'Traditional Marriage'" Yes nice 200 year old tradition in a 400,000 year old species. If I hear traditional marriage one more time, I am going to yak.

DOMA was about states right to define marriage, that does not exclude the ability of the Federal constitution to enforce equal protection. It is not that hard to understand. We do not have any laws prohibiting poor people from getting married. Or ex-convicts. Or people named Trent. All of whom probably should be suspect parents/spouses before gay people.

Why don't conservatives get that gay people can have kids. I don't, but others do.

Why does it always come down to polygamy? A court couldn't simply allow polygamy. The polygamous marriage system wouldn't function without additional legislation to regulate how it would function. Most states have a system where each spouse owns half of the property of the marriage. How would that work in a polygamous system? Answer it wouldn't. Polygamy literally changes the definition of marriage, not who can marry.

So did Kitchen et al sue the right people?


Liam '14