Category Archives: Law: Con Law: Marriage

Keep Guessing

Ruthann Robson runs through the options as to whether today’s immigration/marriage case allows us to predict much about the coming same-sex marriage case.

You’d think it might…but she’s persuasive that it doesn’t…necessarily…

In United States Supreme Court’s fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy’s concurrence, joined by Alito, the clear signal is that Justice Scalia’s refusal to recognize a liberty interest in marriage is not one to which they are subscribing – – – in this case.  Given that Justice Kennedy, as author of the Court’s opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia’s derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia’s position, does the Chief Justice’s joining of Scalia’s opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not. 

Lots of good explanation follows.

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Ireland Embraces Marriage Equality

Videos like this carry the day in Ireland’s referendum:

How long before the entire US catches up?

Posted in Law: Con Law: Marriage, Politics: International | Leave a comment

Progress in Action

I was oddly cheered by De Blasio Takes His Modern Family on the Campaign Trail. The article, buried deep in the A section of today’s paper, reports that NY Mayoral candidate Bill de Blasio’s family is a major part of his campaign, and that by deploying them, and especially his kids, he is portraying himself as at once the most politically progressive candidate but also the ‘family’ candidate.

Obviously, this sort of strategy ought to work against serial selfie-sharer Anthony D. Weiner, a candidate who is, to say the least, not family friendly. Perhaps less cheerfully, it also may work against Christine C. Quinn, whose wife, we are told, is not much of a campaigner.

One might well ask what is cheerful about a campaign ploy that could be said to subtly play against the fact that the leading candidate is not just a childless woman, but one married to another woman. The answer has two parts. First, that in the Times’s coverage at least, the modern nature of the City Council Speaker Quinn’s marriage invokes no comment at all. Second and more significantly, the de Blassio family consists of an Italian-American male, an African-American woman, Chirlane McCray, who did not take his name, and their two kids — one of whom stars in the campaign’s first video and promises among other things that de Blassio will reform the NYPD’s excessive stop-and-frisk policy.

Twenty-five years ago, I doubt that a campaign for major office, even in New York, could have been built around an inter-racial marriage as a major selling point. (Nor that it would showcase a 15-year-old kid with a big black Afro promising to rein in the police.) In twenty-five years we’ll see gay candidates on video boasting about the longevity of their marriage and about their kids.

Progress in action — slow, yes, and as always incomplete. But progress nonetheless.

Oddly related: Down With Tyranny’s The Failure Of Identity Politics– And It’s Not Just Wall Street Shill Cory Booker; one inevitable consequence of progress is that now anyone can be a sellout.

Posted in Law: Con Law: Marriage, Politics: US | Leave a comment

UnderStanding the Sting in Hollingsworth v. Perry

I’m of course happy that the Supreme Court today issued two rulings that affirm the validity of state-sanctioned same-sex marriage. The full texts are at US v. Windsor and Hollingsworth v. Perry.

But I have to say that there is some bitter wrapped up in the sweet. Chief Justice Roberts’s opinion in Hollingsworth has a pretty bad sting, one well laid-out in Justice Kennedy’s dissent. The issue for me goes back to a key standing decision, Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). That decision held open the door to ‘bounty’ statutes creating standing: thus if Congress, or a state legislature, wanted to create generalized standing, it need only create a small dollar prize for vindicating a right. At that point, there’s a financial interest, and anyone can bring the case. (Thus, for example, qui tam actions.) As a general matter, liberals have wanted to expand access to courts, and conservatives have sought to narrow it — although one might question the political wisdom of the liberal strategy since the current Court is, IMHO, merely regressing to a historic mean; the Warren Court was a rare departure from the generally conservative, even reactionary, bent which is almost a structural feature of a life-tenured judiciary staffed primarily by older lawyers.

The key move in Hollingsworth, per Roberts with the votes of Scalia and (perhaps unfortunately?) the Court’s moderates and liberals, is to say that California’s state law practice of saying that proponents of a ballot initiative have standing to sue to vindicate it does not cut any ice in federal court. I hope this does not come back to bite us, but I’m fairly sure that it will in future standing cases.

Update: Mark Tushnet is worried about this too. In Perry and the Constitutionalization of Agency Law he writes:

The question then is, What other state-law entitlements are constrained by Article III for standing purposes? (Here “state-law” is a shorthand for “entitlements created by law outside Article III,” so the principle applies to congressionally-determined entitlements as well.) Akins says that Congress can create a right to information merely to satisfy the requestor’s curiosity; Lujan says that Congress can’t create a right to ensure that “the law” be adhered to. Perry is somewhere in between, but who knows exactly where. Maybe the technical problem in Perry is that the California Supreme Court didn’t use the right magic words to describe the initiative proponents as “really, really” agents of the people.

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A Great BBQ Joint

Yet another reason why 12 Bones in Asheville, NC, is one of the greatest BBQ places in the USA.

(Spotted via the great Slacktivist’s TMI, barbecue and other people’s sex lives.)

Posted in Food and Drink, Law: Con Law: Marriage | Leave a comment

Obama Evolves

Ta-Nehisi Coates of The Atlantic, with the best reaction I’ve seen tonight to President Obama’s announcement the he now supports equal-opportunity marriage:

Obama Evolves:

I know what the polls show, and I know he was pushed into it, but I still credit the president with doing the right thing. So much of this process reminds me of Lincoln weighing emancipation, even as he knew, in his heart, that slavery was a sin.

Moreover, regardless of the push, I think this is really heartening timing after North Carolina, where a ban on gay marriage and civil unions triumphed by some 20 points.

So what if there is an element of calculation here. It’s still the right thing to do; it is nice even just once in a while to get that from the White House.

Posted in Law: Con Law: Marriage | 1 Comment

Victory in the Culture Wars

I never read comic books as a child (or adult), but I still think this signals victory in the culture wars:

The January issue of Life with Archie will feature the marriage of hometown hero Kevin Keller, to his partner, an African-American, physical therapist, Clay Walker.

via ACLU Blog, Wedding Bells in Riverdale.

(And who knew that Batwoman “is a Jewish lesbian”? Did they do that in the movies too?)

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