Windy City Media Group Frontpage News


home search facebook twitter join
Gay News Sponsor Windy City Times 2023-02-22



Supreme Court decision, Obergefell analyzed
by Lisa Keen, Keen News Service

This article shared 3195 times since Mon Jun 29, 2015
facebook twitter google +1 reddit email

The U.S. Supreme Court's June 26 decision striking down state bans against same-sex marriage has been touted as "probably the strongest manifesto in favor of marriage" and pilloried as "a threat to American democracy." It has energized celebrations at LGBT Pride events and private living rooms across the country and prompted warnings of "an all out assault against the religious freedom rights of Christians who disagree with this decision."

But despite these vastly different reactions, there has not yet been an attempt by any state to secede from the union that President Obama characterized as "a little more perfect" now. As of Monday, 12 of the 13 of the states that had statewide bans in effect have started issuing licenses in at least some, if not all, their counties.

The Texas attorney general is encouraging clerks to raise religious objections to issuing the licenses but has warned them that, doing so, could lead to "litigation and/or a fine."

Mississippi's attorney general told clerks to delay issuing licenses until a formal order to do so is issued from the federal appeals court. Louisiana's Governor Bobby Jindal has instructed clerks that they do not have to issue licenses if they have religious objections to doing so. And the Texas attorney general is encouraging clerks to raise religious objections to issuing the licenses but has warned them that, doing so, could lead to "litigation and/or a fine."

Republican presidential hopeful Mike Huckabee has vowed that he "will not acquiesce to an imperial court," a statement that will almost certainly come back to haunt him, given that the constitution requires the president "shall take Care that the Laws be faithfully executed." ( President Obama continued to enforce the Defense of Marriage Act until the Supreme Court struck it down as unconstitutional. )

The huff and puff will soon die down, and the legal bricks that will remain standing in the Supreme Court's Obergefell v. Hodges ruling are these:

- the word "liberty" in the 14th Amendment of the U.S. Constitution includes the fundamental right of a citizen to marry

-state bans against allowing same-sex couples to marry burden the "liberty" of gay and lesbian citizens

-the bans are unconstitutional infringements on the rights to due process and equal protection

- and states with such bans have not shown "a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe."

The word "liberty" was at the center of the Obergefell decision, authored by Justice Anthony Kennedy. He used the word 25 times. The dissents used it 122 times.

Kennedy noted that the 14th Amendment to the constitution says that "no State shall 'deprive any person of life, liberty, or property, without due process of law'." He cited Supreme Court precedent saying that the word "denotes not merely freedom from bodily restraint but also the right "to marry, establish a home and bring up children…." The quote came from a 1923 case, Meyer v. Nebraska, that struck down a state ban on the use or teaching of foreign languages in schools and which referred to numerous other precedents discussing the meanings of "liberty."

None of the four justices in dissent mentioned Meyer. Instead, each claimed that the Kennedy majority based its decision on non-legal grounds. Chief Justice John Roberts contends the majority "relied on its own conception of liberty" and that its opinion was rooted in "social policy and considerations of fairness." Justice Antonin Scalia said the majority engaged in "constitutional revision." Justice Clarence Thomas said the majority's opinion was "based on an imaginary constitutional protection and revisionist view of our history and tradition." Justice Samuel Alito said the majority "invent[ed] a new right and impose[d] that right on the rest of the country."

Some will argue that it was the dissenters who invented something new: the idea that, when there is a vigorous public debate about a matter, the Supreme Court should not act.

"Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today," wrote Roberts. "Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

( A Williams Institute fellow, Adam Romero, said his research before and after the Supreme Court struck down DOMA found the court's action "fostered positive attitude changes." )

All four dissenters lamented the end of the national debate over same-sex marriage.

The debate over marriage for same-sex couples, wrote Scalia, "displayed American democracy at its best."

"Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views…. Win or lose," Scalia wrote, "advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work."

But that's not the system Scalia defended in 2000 when he went along with the 5 to 4 decision in Bush v. Gore that delivered the presidential election to Republican George W. Bush. That opinion ( which did not identify an author ) said that the majority admired the Constitution's design to leave certain matters "to the people, through their legislatures, and to the political sphere" with one notable exception:

"When contending parties invoke the process of the courts… it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

That latter line might well have fit into the majority opinion for Obergefell. Instead, Kennedy wrote, "the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights."

"The dynamic of our constitutional system," Kennedy wrote, "is that individuals need not await legislative action before asserting a fundamental right."

Gay & Lesbian Advocates & Defenders attorney Mary Bonauto put it most succinctly on The Rachel Maddow Show June 26: "In our system, you don't have to convince every single person before the court vindicates your constitutional rights."

© 2015 Keen News Service. All rights reserved.

This article shared 3195 times since Mon Jun 29, 2015
facebook twitter google +1 reddit email


Gay News

WORLD Japanese poll, Sydney Mardi Gras, mpox, rugby study, soccer player 2023-02-19
- Sixty-four percent of respondents to a Kyodo News poll believe same-sex marriage should be recognized in Japan, the media outlet noted. In the telephone survey, 88.4% also said recent remarks hostile to LGBTQ+ people by a ...

Gay News

Gay Calif. lawmakers introduce Prop 8 repeal 2023-02-14
- On Valentine's Day, two gay California lawmakers introduced a constitutional amendment to repeal Prop 8—the state's same-sex marriage ban that remains on the books despite being ruled unconstitutional years ago, according to The Bay Area Repo ...

Gay News

WORLD Church of England, Japanese officials, Hong Kong ruling, drag kings 2023-02-11
- The Church of England has voted to bless same-sex marriages for the first time in its history; however, its ban on conducting ceremonies will stay in place, PinkNews reported. It was approved after a six-year consultation ...

Gay News

WORLD Indian marches, delegation in Cuba, anti-LGBTQ+ investigation 2023-01-15
- Hundreds of people took part in the first Delhi Queer Pride march in three years as pressure grows for legal recognition of same-sex marriage in India, The Manila Times noted. In March, the South Asian's top ...

Gay News

NATIONAL Testifying in D.C., Brittney Griner, marriage law, school policies 2022-12-18
- WARNING: This week's news contains graphic content. Survivors of the Club Q shooting in Colorado Springs that killed five people and injured approximately 20 others joined GLAAD and other advocates in providing testimony before the House ...

Gay News

Cook County's Kevin Morrison attends signing of Respect for Marriage Act at the White House 2022-12-13
-- From a press release - Washington D.C. — December 13thth 2022 — Cook County Commissioner Kevin Morrison attended the signing of the historic Respect for Marriage Act recently passed by both chambers of congress. The bill guarantees the federal rights ...

Gay News

With President Biden's signature, Respect for Marriage Act is law 2022-12-13
-- From a press release - WASHINGTON — The Human Rights Campaign (HRC) — the nation's largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — celebrated today as President Biden signed the Respect ...

Gay News

President Biden signs Respect for Marriage Act into law; groups and leaders respond 2022-12-13
-- From press releases - In response to President Biden signing the Respect for Marriage Act into law, groups and leaders release statements. ...

Gay News

Respect for Marriage Act passage important step but not equity says LGBTQIA+/ally Catholic group 2022-12-09
-- From a press release - Dec. 8, 2022. DignityUSA, the nation's foremost organization of Catholics working for justice, equality, and full inclusion of LGBTQIA+ people in our church and society, is pleased that both houses of Congress have now passed the ...

Gay News

Groups and leaders celebrate passage of the Respect for Marriage Act 2022-12-08
-- From press releases - U.S. Representative Mike Quigley: Washington, D.C.— Today, U.S. Representative Mike Quigley (IL-05), Vice-Chair of the Congressional LGBTQ+ Equality Caucus, released the following statement celebrating the passage of ...

Gay News

Congress passes Respect for Marriage Act, sends to President Biden for signature 2022-12-08
-- From a press release. Video below - (New York, NY - December 8, 2022) — GLAAD, the world's largest lesbian, gay, bisexual, transgender and queer (LGBTQ) media advocacy organization, is responding to the passage of the Respect for Marriage Act in the U.S. ...

Gay News

WORLD Japan ruling, Kenya groups, World Cup, Almodovar 2022-12-04
Video below - A district court in the Tokyo Prefecture ruled that Japan's constitutional ban on same-sex marriage is legal, according to The Washington Blade. In a statement to Reuters, plaintiffs' attorney Nobuhito Sawasaki said, "This is actually a ...

Gay News

NATIONAL Trans officials, marriage equality, Karl Schmid, Pelosi, Buttigieg 2022-12-04
Video below - Once all of the newly elected officials are seated, there will be nine transgender state legislators (up from eight this year) and nine non-binary state legislators across the country, NBC News noted, citing The Victory Institute. ...

Gay News

Landmark step toward equality: Senate passes bipartisan Respect for Marriage Act 2022-11-29
-- From press releases - WASHINGTON — The Human Rights Campaign (HRC) — the nation's largest lesbian, gay, bisexual, transgender and queer (LGBTQ+) civil rights organization — today celebrated the bipartisan passage of the Respect ...

Gay News

NATIONAL Respect for Marriage Act, lesbian judge, gay official resigns 2022-11-20
- Senate Majority Leader Chuck Schumer (D-New York) said that debate on the Respect for Marriage Act (RFMA) is suspended and will continue on Nov. 28, when the Senate reconvenes after Thanksgiving, LGBTQ Nation reported. The RFMA ...


Copyright © 2023 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.






About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots
Identity      BLACKlines      En La Vida      Archives      Advanced Search     
Windy City Queercast      Queercast Archives     
Press  Releases      Join WCMG  Email List      Email Blast      Blogs     
Upcoming Events      Todays Events      Ongoing Events      Bar Guide      Community Groups      In Memoriam     
Privacy Policy     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.