27 Jun 2015 // 09:00

Modern Law for the Week Ending June 26, 2015

This week I devote the entire newsletter to the Supreme Court decision declaring bans on same-sex marriage unconstitutional. I try to provide a variety of viewpoints despite the fact that I agree with the general assertion that the Constitution does not permit bans on the marriage of two consenting unrelated adults.

I also thought it prudent to include in this week’s introduction my own in-depth legal analysis of the ruling, which I have worked on for years in anticipation of today’s decision and present now in its voluminous and intellectually unassailable entirety:

Huzzah!

Now, on with the links.

Supreme Court Gay Marriage Ruling: The Highlights

Here are highlights from Friday's 5-4 Supreme Court decision legalizing same-sex marriage across the country.

This is for the folks who don’t relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Religious Groups Vow to Fight Gay Marriage Despite Supreme Court

Religious and conservative leaders opposed to same-sex marriage say their fight over the issue won't end with Friday's Supreme Court ruling that effectively legalized the practice nationwide.

My grandmother taught me that when I don’t have anything nice to say, I shouldn’t say anything at all.

So [ THIS SPACE INTENTIONALLY LEFT BLANK ].

Transcript: Obama's remarks on Supreme Court ruling on same-sex marriage

This decision will end the patchwork system we currently have. It will end the uncertainty hundreds of thousands of same-sex couples face from not knowing whether they're marriage, legitimate in the eyes of one state, will remain if they decide to move or even visit another.

I always thought that very uncertainty was far worse than moral opposition to same-sex marriage. Moral opposition can be understood in terms of how someone was raised, how passively or actively they embrace confirmation bias or (more common than the other two among politicians, I suspect) the need to appeal to a particular constituency.

But the uncertainty of interstate differences in marriage law has a profound practical (and detrimental) effect on myriad decisions same-sex couples have to make all the time about issues like travel, employment and estate planning.

John Roberts's full-throated gay marriage dissent: Constitution 'had nothing to do with it'

"If you are among the many Americans -- of whatever sexual orientation -- who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Chief Justice Roberts' dissent suggests that he may have considered things differently if he were in a legislator’s shoes but thinks it inappropriate for the Court to decide the issue. That’s a distinction worth thinking about, too. It is possible to morally support a right to same-sex marriage but also take the position that the Supreme Court is not the appropriate venue for governmental affirmation of that right.

PDF: OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.

Here’s the entire opinion in PDF form, for the folks who do relish the idea of sitting down with a 100-page Supreme Court opinion and a third cup of coffee for lunch.

Image via Human Rights Campaign

14 Jan 2015 // 10:38

South Dakota same-sex marriage ban falls

I’ve probably used this line before, but I can’t help myself… Another one bites the dust.

2 May 2013 // 19:15

Rhode Island legalizes same-sex marriage

The inexorable march of time sees a tenth state grant gay and lesbian people the statutory right to marry.

Those states who have yet to get on board would do well to hurry: you’re quickly running out of time to look like you were ahead of the curve in the common sense of twenty-first century civil rights.

18 Oct 2012 // 13:50

2nd U.S. Circuit Court of Appeals: DOMA violates Equal Protection

Larry Neumeister, for AP:

The 2nd U.S. Circuit Court of Appeals issued its 2-to-1 ruling only weeks after hearing arguments on a lower court judge’s findings that the 1996 [“Defense of Marriage Act”] was unconstitutional.

This is good news. The holding was based on the intermediate scrutiny constitutional standard and declared DOMA violative of Equal Protection.

The dissent in the 2-1 decision came from Judge Chester Straub, who said “courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate.”

It is the duty of a court to intervene where legislation violates constitutional protections, and that is exactly what DOMA does with regard to same-sex marriage.

There is no valid argument to the contrary.

If the Supreme Court fails to strike this law down when it comes to them some time in the next year, and fails to confirm that our Constitution disallows discrimination with regard to who citizens love solely on the basis of a majoritarian religious belief, it will be the darkest legal day in my lifetime thus far.

9 May 2012 // 06:55

Remember: 39% of North Carolinians are not fearful and ignorant

The North Carolina amendment alters the constitution to say that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” in the state.

—CNN

I don’t often take a preachy tone, and this story has little to do with how the law and technology intersect, which is my usual topic on this website. However, I think people should be treated the same, and when they’re not, I get angry. When masses of people vote for something so clearly despicable that it can accurately be called evil, I have to get my thoughts about it out of my system.

And my thoughts about North Carolina’s ban on same-sex marriage are the following:

One day, the descendants of the 61% of North Carolinians who voted discrimination into their constitution today will look back on what their parents, grandparents, and great-grandparents did on Tuesday, May 8, 2012 with disgust, much the same way we do when we read the state’s nonchalant 1875 ban on interracial marriage.

To the 39% of folks in North Carolina who voted with morals, ethics, and plain old common sense:

I implore you, for the sake of your children, to leave your state. Seek refuge from those among your neighbors who would so blight the wonder of democracy.

You are the 39%, who refused to institutionalize hate, to legalize discrimination, to dress up ignorance in the guise of religion, or to use family as a pretext for subjugating a minority. Be proud.