Well Played

Thoughts on the Marriage Equality Rulings

I’ve been hearing interesting tidbits from the many Federal Court cases around the nation striking down various state restrictions on Gay Marriage. Recently a Federal Court in Wisconsin struck down that state’s ban on gay marriage, and in the opinion the judge addressed the argument that the state should have the right to support “traditional marriage.” Polygamy, the Judge noted, was once considered a traditional form of marriage. When the 10th Circuit Court of Appeals struck down Utah’s ban on gay marriage it spent some time discussing the burden on the children of gay parents who are unable to marry.

Federal courts across the country are consistently striking down bans on gay marriage, and the rulings have contained detailed Constitutional arguments. Issues of equal protection under the Fifth and Fourteenth Amendments have been analyzed historically, legally, theologically, and philosophically. But, as noted, a wide variety of other issues have been addressed. It seems like nearly every conceivable argument against allowing gays to marry has been analyzed and rejected.

It is as if the courts are making some sort of coordinated effort to address every possible legal, political, or practical argument against gay marriage. If one court misses an issue, or a new argument is raised in the media or the courts, another court adds it to its ruling. Are the courts working together, colluding somehow?

It may seem like it, but the reality is that it’s the litigants that are engaged in the broad and comprehensive strategy. Here’s a little secret that most people don’t know. Judges don’t always write the Court’s opinions. They often crib their rulings from the legal briefs of the winning party.

Here’s a little bit of information on how a case works. Before trial both sides write a joint trial brief setting out the facts that are agreed and the law that they agree apply in the case. In these gay marriage cases the controlling law is obviously the Fifth and Fourteenth Amendments, and whatever state law is at issue. Many of the basic facts in the case will also be agreed upon, such as the date the various restrictions were enacted. Both sides also submit trial briefs setting out their interpretation of how the law should apply in the case. The judge, or more commonly the judge’s law clerks, will typically do independent research to verify the law cited by the litigants, but it is not uncommon for the judge to adopt the legal reasoning and arguments of the winning side. The judge is obviously convinced by their argument, so rather than spending the time to write lengthy ruling, the court often cuts and pasts arguments from the winning party. So the arguments that the judge discusses in the ruling are very often the arguments raised by the litigants.

So the fact that courts have addressed a wide variety of different arguments is evidence of a well-developed and highly coordinated legal strategy by the groups supporting gay marriage, including the ACLU, and an organization called Freedom to Marry. These organizations are undoubtedly addressing every possible argument in their trial briefs, and setting out detail legal and historical analysis of every possible issue. If they miss an issue in one case, or if a judge gives short shrift to an issue in one case, or if a new argument gets raised in one case, the issue gets briefed in detail in every subsequent case.

So, by the time the issue of marriage equality reaches the Supreme Court there will be detailed analysis and rulings from a multitude of jurisdictions. The Supreme Court is certainly not bound by the rulings of lower courts, but the Court does have to give serious consideration to these rulings. And it will find in difficult to overturn well-reasoned rulings with detailed legal and historical analysis. Well played.

Here’s a link to a good list of marriage equality cases: http://www.freedomtomarry.org/litigation

Here’s are a couple of recent court rulings, and some of the particular topics addressed by the court.

On March 21, 2014 a U.S. District Court in Michigan struck down that states ban on gay marriage as a violation of the 14th Amendment. The court spent some time addressing a study cited by the opponents of gay marriage by an anti-gay researcher named Mark Regnerus. The judge said that the study was flawed and “not worthy of serious consideration.”

On May 19, 2014 the U.S. District Court in Oregon held that Oregon’s constitutional amendment and statutes banning the freedom to marry violated the Equal Protection Clause of the 14th Amendment to the Constitution. The Judge in the case, Michael McShane said that the case is not merely about civil rights and equality under the law, but about love, devotion and family.

Just a few days later a U.S. District Court in Pennsylvania struck down that state’s ban on gay marriage. The judge in that cases compared the fight over marriage equality to the fight over education equality (and equality in general) embodied in the Supreme Court’s Brown v. Board of Education decision.

Doom … Doom I Say

Rand Paul

I’ve been listening to conservatives cry doom – doom, we’re all doomed – like a deranged Ghost from the “Christmas Carol” for most of my adult life. Conservatives have been saying for as long as I can remember that our society, or culture, our economy, our nation, all are doomed.

Carter must be defeated, or all is doom. 1980 was the first year I was able to vote for President, so I remember that pretty well. And since the election of Reagan in 1980 conservatives have cried doom … doom … all is doom. If liberals and liberal policies are not stopped, the nation, the economy, society, all of it is doomed. If Clinton is elected, we’re doomed. If Obama is elected, we’re doomed.

In the 1980’s we were doomed to defeat by the Japanese. In the 90’s we were doomed by rising China, and now were doomed by a mature China and the other rising BRIC countries.

But what’s happened since 1980?

Think about the modern economy, and what technologies dominate the modern world: computers, smart phones, the internet. Guess what: all were created in the United States (and to some degree in other supposedly ossified, sissified, corrupt Western nations – important advances in smart phone technology came out of Canada and Norway.) The modern economy was made in the United States. Virtually every modern advance was created in a nation that conservatives said was rotten and decaying.

The cries of doom over the last 35 years are as constant as night following day. Every few years a new doomsayer comes along. In 2010 it was the Tea Party, and their most prominent standard bearer, Rand Paul. Now there’s a new voice in the Republican Party, David Brat, the “economic” professor who defeated Republican Majority Leader Eric Cantor in Virginia. The singer may be different, but they’re singing the same old song: if liberals aren’t stopped, we’re all doomed.

It’s comical because it’s not only consistently wrong, but monumentally wrong.