From the Texas Tribune: Texas Supreme Court to take up same-sex marriage case

Traditionalists in the state are finding ways to push back against Obergerfells v Hodges.

- Click here for the article.

Almost two years after same-sex marriage was legalized nationwide, Texas Republicans are still fighting the ruling — and they’re getting another day in court.

The Texas Supreme Court is set to hear oral arguments on Wednesday in a Houston case challenging the city’s benefits policy for married same-sex couples. Though such policies have been in place since the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges, Texas conservatives are betting the Houston case opens up a path to relitigate the high court’s decision.

“This particular opinion will go to the U.S. Supreme Court and is a potential vehicle for overturning Obergefell given the changing composition of the court,” said Jared Woodfill, one of the lawyers leading the lawsuit filed against Houston on behalf of two taxpayers, and a prominent conservative activist in the city. “Ultimately, I would like to see Obergefell overturned.”

At the center of the Houston case is whether Obergefell, which legalized same-sex marriage across the country, requires the city and other governmental agencies to extend taxpayer-subsidized benefits to same-sex spouses of government employees.

In Obergefell, the U.S. Supreme Court in 2015 ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

But opponents argue that interpretation was far too broad.

“Obergefell may require states to license and recognize same-sex marriages, but that does not require states to give taxpayer subsidies to same-sex couples — any more than Roe v. Wade requires states to subsidize abortions or abortion providers,” lawyers challenging the Houston policy wrote in a filing with the Texas Supreme Court.

They argue that the right to marry does not “entail any particular package of tax benefits, employee fringe benefits or testimonial privileges.” (In a separate case against the state’s now-defunct ban on same-sex marriage, the Texas Attorney General’s office actually argued that marriage is a right that comes with benefits the state is entitled to control.)

A spokeswoman for Houston Mayor Sylvester Turner declined to comment on the upcoming hearing, saying the city prefers “to offer our arguments in the court and our filings.”

Update: Treat same-sex couples the same as others, Texas Supreme Court told.

From ABCNews: GOP President-Elect Donald Trump Says Same-Sex Marriage Is 'Settled' Law

Obergerfells id safe, but - apparently - not Roe v Wade.

Assuming Trump has influence over either of course.

- Click here for the article.

Republican President-elect Donald Trump said he’s “fine” with same-sex marriage as the law of the land, calling the issue "settled" by the Supreme Court.

The comments – in Trump's first television interview since winning the presidency – sharply contrast with his party’s orthodoxy, his running mate’s longtime position and comments he made during the Republican primaries.

“It’s law,” he said in an interview with CBS’ "60 Minutes" that aired Sunday. “It was settled in the Supreme Court. I mean it’s done.”

“These cases have gone to the Supreme Court. They’ve been settled. And I’m – I’m fine with that,” he added.

In the same interview, when asked if he would appoint a Supreme Court justice who wants to overturn Roe v. Wade, Trump said his judges will be "pro-life," and suggested that decision could be overturned.

"If it ever were overturned, it would go back to the states," Trump said.
Women seeking abortions would have to go "go to another state" for the procedure.

The Republican Party’s official platform, ratified by the party in July, opposes same-sex marriage, condemns the Supreme Court’s rulings in Obergefell v. Hodges and United States v. Windsor, and supports proposed “religious freedom” legislation that critics say would allow businesses to deny services to gay people.

Trump’s comments about gay marriage break with the longtime position of his running mate, Indiana Gov. Mike Pence, who signed a religious freedom bill into law in 2015, but walked back on some of its language after facing backlash from across the country.

My Statesman: Greg Abbott presses Texas Supreme Court to limit gay-marriage ruling

More - expected - conflict between Texas and the U.S.

- Click here for the article.

Ratcheting up pressure on the all-Republican Texas Supreme Court, Gov. Greg Abbott and other leading GOP officials Friday urged the court to revive efforts to abolish employee benefits the city of Houston provides to married same-sex couples.

The case has become a rallying point for the state’s social conservatives, with the stakes growing larger now that Abbott, Lt. Gov. Dan Patrick and state Attorney General Ken Paxton have weighed in — telling the court that the Houston lawsuit provides an opportunity to limit the impact of last year’s U.S. Supreme Court ruling that struck down the state’s ban on gay marriage.

“This court should take this opportunity to remind the lower courts that all disputes involving the right to same-sex marriage have not been resolved,” Abbott, Patrick and Paxton said in a friend-of-the-court brief.

The Houston case presents a particular challenge for a court that strives to appear above politics while its justices are forced to run every six years as members of a particular political party.

Opponents of same-sex marriage have peppered the court with dozens of emails asking justices to strike down the Houston benefits or face a voter backlash in future Republican primaries. The barrage makes it clear that some GOP voters view the case as a litmus test for party loyalty and adherence to Christian values.

From the Pew Research Center: Where the Public Stands on Religious Liberty vs. Nondiscrimination - Two-thirds say employers should provide birth control in insurance plans, but public is split over same-sex wedding services and use of public bathrooms by transgender people

The battle between the equal protection and free exercise clauses continues to rage.

- Click here for the article.

The U.S. public expresses a clear consensus on the contentious question of whether employers who have religious objections to contraception should be required to provide it in health insurance plans for their employees. Fully two-thirds of American adults say such businesses should be required to cover birth control as part of their employees’ insurance plans, according to a new Pew Research Center survey, while just three-in-ten say businesses should be allowed to refuse to cover contraception for religious reasons.

The survey of more than 4,500 U.S. adults explores recent controversies that have pitted claims of religious liberty and traditional morality against civil rights and nondiscrimination policies. And it finds that Americans are more closely divided on two other hotly debated questions: whether businesses should be able to refuse service to same-sex couples, and whether transgender people should be required to use particular restrooms.

About half of U.S. adults (49%) say businesses that provide wedding services, such as catering or flowers, should be required to provide those services to same-sex couples as they would for any other couple. But a nearly equal share (48%) say businesses should be able to refuse services to same-sex couples if the business owner has religious objections to homosexuality.

And in the debate over bathroom use by transgender people, roughly half of Americans (51%) say transgender people should be allowed to use public restrooms of the gender with which they currently identify, while nearly as many (46%) say transgender individuals should be required to use restrooms of the gender they were born into.

From Slate: Texas Supreme Court Justice: States Can Deny Same-Sex Spousal Benefits to “Encourage Procreation”

More conflict between the dominant political cultures in Texas and the United States. This fits material we've been discussing in 2306. It also illustrates the tension inevitable in federal systems. Texas continues to chafe against the requirement that they recognize same sex marriages.

- Click here for the article.

On Friday, the Texas Supreme Court refused to review a lower court ruling holding that cities may not deprive married same-sex couples the benefits it provides to opposite-sex couples. The court’s decision leaves in place a pro-equality ruling that forbids the government from discriminating against gay people for no good reason. But one judge, Justice John Devine, argued that his court should have taken the case and reversed the lower court’s judgment. His opinion is an ominous sign that conservative judges are striving to work around Obergefell v. Hodges and affirm the constitutionality of state-sponsored anti-gay discrimination.

Devine is clearly no fan of Obergefell, and his dissent attempts to minimize that decision to an almost dishonest degree. “Marriage is a fundamental right,” Devine wrote. “Spousal benefits are not.” Devine insisted that Obergefell’s affirmation of same-sex couples’ constitutional right to wed does not preclude Texas from discriminating against married, same-sex couples in other ways. Obergefell, the justice argued, was strictly limited to gay people’s fundamental right to marry. So long as a state does not revoke that right, it can deprive same-sex couples of other benefits guaranteed to opposite-sex couples. Specifically, Devine wrote, the government can refuse to give spousal benefits to its gay employees because they are gay.

Why should Texas be permitted to deprive same-sex couples of the benefits provided to opposite-sex couples? Because the state has an “interest in encouraging procreation.” Devine speculates that “offering certain benefits to opposite-sex couples would encourage procreation within marriage.”

From the American Constitution Society: Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law

A recently published book talks about how organized citizens groups have been able to transform constitutional law by developing and pursuing court cases that force the Supreme Court to reconsider the meaning of the Constitution.

- Click here for a summary from the author.

President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

In my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, I tell this story, tracing the strategic choices and incremental victories and losses that ultimately brought us marriage equality. I also show how the individual right to bear arms, dismissed as a fraud by Chief Justice Warren Burger in 1990, became a constitutional right in 2008. Here, too, the key lies in civil society, and in particular in the National Rifle Association, almost certainly the most effective civil rights organization in the United States today. The story of how the NRA prompted recognition of an individual right to bear arms after courts had denied one existed for 100 years has striking parallels to the marriage equality campaign and provides important lessons for anyone seeking constitutional change, whether in a liberal or conservative direction.

Finally, I ask what made President George W. Bush curtail so many of his most aggressive counter-terrorism measures by the time he left office, given the history of courts and Congress deferring to presidents in times of crisis. Here again, the answer lies in the work of civil society groups—such as the Center for Constitutional Rights, the ACLU, Human Rights First, and Reprieve. The challenges human rights groups faced were quite different, but they, too, had to seek alternative forums from the Court itself if they were to succeed in pushing back against Bush and Cheney.

Through these three accounts, I seek to show that the real movers of constitutional change are not the elite lawyers who argue before the Supreme Court, nor the Justices themselves—although both sets of actors of course play a part—but ordinary citizens, working together to make their own shared vision of constitutional ideals into constitutional law. In this sense, you might even say, it is “citizens united” who are the true drivers of constitutional change, and the real “living Constitution.” The book underscores the central importance of groups like the American Constitution Society to the vitality of our Constitution, argues that healthy constitutionalism requires, in addition to the separation of powers and judicial review, a robust and engaged civil society, and provides a template for action.

Obergefell v Hodges

This is the court decision that recognized gay marriage. It allows us to bridge consideration of both the courts and civil rights, so its worth a look.

The questions presented to the court were:

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

Here are links for more info:

- Supreme Court - the decision.
- Oyez.
- Scotusblog.
- Wikipedia.

Statewide officials in Texas push back against the gay marriage decision - but seem to accept that it is here to stay

As 2306 students learned - the state of Texas delegates the handling of the bulk of its paperwork to the counties, much of this is handled by the county clerk's office. This includes the processing of marriage licenses, which now have to be open to same-sex couples in addition to opposite sex couples.

State officials have written rules providing opportunities for clerks to not due so if they argue that this conflicts with their religious convictions.

A few items along those lines:

- Paxton: County clerks may refuse — on religious grounds — to issue same-sex marriage licenses.

Texas Attorney General Ken Paxton, a Republican social conservative, offered at least moral support Sunday for county clerks and their employees who feel their religious beliefs dictate that they decline to issue same-sex marriage licenses.

In a nonbinding legal opinion, Paxton said religious freedoms guaranteed by the First Amendment “may allow accommodation of their religious objections to issuing same-sex marriage licenses.”

The clerks who balk at licensing gay marriage “may well face litigation and/or a fine,” Paxton warned.

“Importantly, the strength of any particular religious accommodation claim depends on the particular facts of each case,” he concluded.

“But,” he added in a press release, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”

- Can a Texas county clerk refuse to issue a gay marriage license? It’s complicated.

. . . For an accommodation to be made, certain questions arise. "Is their religious belief substantially burdened?" Robson asked. "Is it overridden by their status as a public employee? Where is that line? Because as a public employee, you swear to uphold the Constitution." Public employees "don't have full 1st Amendment rights," she said, "because it's balanced against the interest of their employer, which in this case is the government." 

What's not allowed, in Robson's estimation, is for a clerk to shut down the issuance of licenses across the board over a personal objection. "The question in terms of accommodation has to do with individuals," Robson said. "So if the entire courthouse closed, that would not be an accommodation."

- First same-sex marriage licenses issued in Brazoria County.

After an opinion from the District Attorney's office this afternoon, County Clerk Joyce Hudman said Brazoria County is officially issuing same-sex marriage licenses. Hudman said her offices have been issuing licenses since 1:30 p.m. and will throughout the day.

District Attorney Jeri Yenne gave the county clerk's office a one-sentence opinion that issuing same-sex marriage licenses is mandatory based on the Supreme Court's decision today.

"As a follow-up to your inquiry regarding marriage licenses, please be advised that on today's date, the Supreme Court of the United States issued an opinion indicating the Fourteenth Amendment requires a state to license a marriage between two people of the same sex," Yenne's memo reads.

Some random news items related to Obergefell

- Republicans Vow a Religious Liberty Fight.

In a somber and defiant statement, Attorney General Ken Paxton proclaimed his next battlefront would be in defense of religious liberty.

“The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely held religious beliefs about marriage,” he said. “It is not acceptable that people of faith be exposed to such abuse.”

Hours later, Gov. Greg Abbott sent a memo to the heads of state agencies directing them to “preserve, protect, and defend the religious liberty of every Texan." That order “applies to any agency decision,” including granting or denying benefits, the memo says.

- Texas Counties' Responses to Marriage Ruling Vary.

Elated couples across Texas hurried into county clerks' offices Friday to apply for marriage licenses following the U.S. Supreme Court ruling legalizing same-sex marriage.

Some offices quickly began issuing licenses, including those in Travis, Harris, Tarrant, Bexar, Dallas, El Paso, Hidalgo and Midland counties. Other counties — including Maverick, Ector, Victoria, Potter and Bastrop — were waiting to hear from State Attorney General Ken Paxton on how to proceed.

- What Are States With Same-Sex Marriage Bans Doing Now?

With the Supreme Court's 5-4 ruling Friday morning, same-sex marriage is legal nationwide. For the 36 states, plus the District of Columbia, where such unions are already permitted, the ruling is cause for celebration for the LGBT community, and won't have any actual effect.

But what about the 14 states where gay marriage hasn't been fully implemented—where there are laws banning it, for example, or it's in legal limbo? Governors and attorneys general are facing a decision: Will they abide by the Court's ruling, or will they try to fight it?

- How Same-Sex Marriage Advocates Won America.

For more than 20 years, the campaign to legalize same-sex marriage nationwide has been inching strategically toward the Supreme Court. And Friday, that strategy paid off: Same-sex couples can now get married in every state.

The Court's 5-4 ruling wasn't that surprising; for the past year or two, it even looked like a foregone conclusion. But the historic victory for gay couples didn't just happen; Justice Anthony Kennedy didn't simply wake up one day and decide it was time. It was the culmination of a long, intensive, and deliberate campaign.

Part of the strategy was to build public support; part of it was to win legislative victories in the states. But the ultimate target was always the Supreme Court.

The Supreme Court rules in favor of gay marriage

The argument - as best I can determine it - is that marriage is a fundamental liberty, which means that the government, state governments in this case, have to clear a very high hurdle in order to discriminate between same sex and opposite sex couples. The court effectively ruled that the state's have not done so. they do not have a compelling reason to deny same sex couples the right to so something other couples get to do.

The dissenters disagreed. Aside from arguing that the majority went beyond what the court should be allowed to do, they argued that there are legitimate reasons for why states could deny same sex couples the right to marry. Among these reasons was procreation and the usefulness of a man and woman in the household in order to raise children.

Here is the official holding of the court:

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

For more intelligent coverage:

- Click here for the court's opinion.
- Oyez: Obergefell v. Hodges.
- ScotusBlog. Obergefell v. Hodges.

More detail in upcoming days.

Oral arguments on same sex marriage bans heard in the Supreme Court.

We spent the early part of this week covering this in both 2305 and 2306, since it applies in different ways to each class. In 2305 - civil rights, the equal protection clause and the Supreme Court. In 2306 - federalism.

The case was Obergefell v. Hodges, and it forced the court to address two questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

As we discussed, this provides the court the first opportunity to consider whether the 14th amendment's equal protection clause applies to sexual orientation. They have yet to consider this issue. The states - including Texas - argue that they have the right to discriminate in this matter because the states have a legitimate interest in promoting pro-creation, among other things.

Commentators inferred from the questions asked that the judges were split on whether this was an appropriate reason to do.

For additional info:

- Audio of the arguments can be found here.
- Transcript for the argument in question 1 here.
- Transcript for the argument in question 2 here.
- The Wikipedia page.
- The Dangers of a Constitutional 'Right to Dignity'.
- The Here and Now of Same-Sex Marriage.
- Same-sex marriage is back in the Supreme Court. Here's what a ruling will mean.

Articles discussed this week in 2306 so far

All of these are from the Texas Tribune:

- Business Group Blasts Religious Freedom Proposals.

Texas' most powerful interest group sides with Democrats against legislative proposals to make it easier for religious liberty claims to be made against state laws. Texas businesses - the large ones anyway - see laws favoring same sex relationship as good for business.

- Don't Fear the Reefer: House Mulls Lower Pot Penalties.

This catches us up with proposals to lower punishments for possession of marijuana. The focus is on the costs associated with prosecution - not whether the use of marijuana is good or bad:

A former Harris County prosecutor, [Gene] Wu said reducing the penalties would relieve the caseload in the state's misdemeanor courts. He said that in Houston's Harris County, about a third of the 1,000 cases that hit misdemeanor courts each day involve marijuana possession. 

Wu said prosecutors want to spend their time on assault cases, domestic violence and drunken driving, not small-time drug possession cases. 

"Why not send them to JP court to pay a $150 fine and do hours?" he said. "It's about saving police time, giving courts more range, instead of forcing everybody into jail."

From the Washington Post: Answering five questions about Indiana’s new discrimination law

This might be useful for 2306.

Speaking of national / state conflict ...

Vox explains the current conflict between the state of Alabama and the national government over same sex marriage.

- Click here for the article.

Commentary to follow - but all this flows from the fact that we live in a federal system with two levels of government with (more or less) independent sovereign status.

Federal judge rules that bans on same sex marriage do not address a legitimate state interest

Just in time - well a slight bit late - for 2305's review of civil rights comes a decision by a federal judge in Michigan against the states ban on same sex marriage.

- Click here for the decision.

Starting on page 16, the judge offers a review of the various standards that can be used to strike differences between groups (strict scrutiny etc...) and concludes that the law has no rational purpose. This means a higher standard must be used to strike differences between same and heterosexual couples for purposes of marriage.

Its a great take on a subject I may or may not have covered clearly in class - but students should read though it so they can see how the topic is applied currently to deal with this ongoing issue.

Here's an important part of the decision from page 20 - here the judge denies that the reasons offered fro banning same sex marriage met a legitimate state interest - which is the low bar a law has to clear in order to meet the requirements of rational basis review - the same requirements age restrictions on drinking have to clear:

Largely in keeping with the justifications offered in their summary judgment motion, at trial, the state defendants asserted that the MMA serves the following legitimate state interests: (1) providing an optimal environment for child rearing; (2) proceeding with caution before altering the traditional definition of marriage; and (3) upholding tradition and morality. Additionally, the state defendants consistently asserted that defining marriage is within the exclusive purview of the state’s police power. None of these proffered reasons provides a rational basis for adopting the amendment.

Continue with the decision to unpack his reasoning.

What level of scrutiny will be applied to sexual orientation?

For this week's look at the equal protection clause.

The answer appears to be "heightened scrutiny," but I can't tell if this refers to intermediate review or strict scrutiny. Maybe that has yet to be determined.

- click here for the article.

When the U.S. Supreme Court made history in June by striking down the Defense of Marriage Act, the substantive holding was immediately clear: the discriminatory federal law “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” What was not exactly clear was what, if any, sort of legal standards the justices set for future courts. A federal appeals court ruling issued Tuesday finds the justices set a new, heightened standard for justifying discrimination on the basis of sexual orientation.

In a ruling holding that lawyers cannot discriminate against gay people when selecting juries, a unanimous panel for the U.S. Court of Appeals for the Ninth Circuit held that courts must apply what is known as “heightened scrutiny” when assessing laws or policies that discriminate on the basis of sexual orientation. Though the Ninth Circuit does not state precisely how much skepticism it will apply to laws that discriminate against gay litigants in the future, the phrase “heightened scrutiny” is a powerful one — often, laws subject to this scrutiny are treated as preemptively unconstitutional. Indeed, the Ninth Circuit’s opinion could potentially put sexual orientation discrimination claims on similar footing with race or gender discrimination claims, and require the government to meet a very high burden to justify a discriminatory law.

Over the years, the U.S. Supreme Court has deemed certain classifications as “suspect” or “quasi-suspect” under the U.S. Constitution’s Fourteenth Amendment. The words “heightened scrutiny” are frequently used to describe the high level of skepticism applied to laws that rely on such classifications. Laws that discriminate by race are subject to the most rigorous, “strict scrutiny,” while laws that discriminate by gender are subject to “intermediate scrutiny.” Because it wasn’t clear whether the U.S. Supreme Court applied heightened scrutiny in United States v. Windsor, the federal appeals courts who have since struck down their same-sex marriage laws citing that decision have continued to use the lowest standard of review, rational basis.

From the Dish: The Marriage Equality End Game

I just touched up slides for 2305's discussion later this semester of public opinion - which includes a look at the impact of peer groups like generational cohorts. Changes in public policy quite often are driven by changes in the opinions that each generation holds.

This helps explain shifts in attitudes about gay marriage (also - and more positively - called marriage equality). Grandma and grandpa do not change their opinions on the matter - they just grow old and die and their opinion die with them. These are replaced by their kids and grand kids - who will have the same fate.

There's an underlying cruelty to this.

Andrew Sullivan comments on this and offers this graphic that details the different attitudes within each generation, and why the shifts in attitudes are likely to be long lasting. Note the shifts among Republicans - that's the kicker.

- Click here for the post.

Attorney General Eic Holder announces that the federal government will begin treating same sex and heterosexual couples the same

This development applies to a variety of topics we cover in 2305. One is civil rights, because it involves equal protection before the law as stated in the 14th Amendment. Another is the Supreme Court since it is up to the court to determine what the equal protection applies to and if this includes sexual orientation, which it did so in United States v. Windsor. And another is the separated powers and checks and balances since the executive branch is essentially responding to the implications of United States v. Windsor, a major court case of last year that gave some recognition to same sex marriages. Finally, this also applies to the bureaucracy's rule-making power. The Justice Department seems to be making these decisions on its own, based on the authority already granted to it.  There's also an element of interest group and electoral politics thrown into the mix.

Here's background from the New York Times:

The federal government will soon treat married same-sex couples the same as heterosexual couples when they file for bankruptcy, testify in court or visit family in prison.

Attorney General Eric H. Holder Jr. was preparing to issue policies aimed at eliminating the distinction between same-sex and opposite-sex married couples in the federal criminal justice system, according to a speech given at a Saturday event organized by a prominent gay-rights group.

“In every courthouse, in every proceeding and in every place where a member of the Department of Justice stands on behalf of the United States, they will strive to ensure that same-sex marriages receive the same privileges, protections and rights as opposite-sex marriages,” Mr. Holder’s said.

The changes were set in motion last year when the Supreme Court declared it unconstitutional to refuse federal benefits to married same-sex couples, a ruling that Mr. Holder supported.

Gay-rights advocates welcomed the changes but had hoped Mr. Holder would use his address before the Human Rights Campaign to announce that the president would sign an order prohibiting federal contractors from discriminating based on sexual orientation.

ScotusBlog provides more detail about the rationale behind the decision:

This effort, he told a dinner gathering of the Human Rights Campaign, a gay rights advocacy group, is intended “to give real meaning” to the Supreme Court’s decision last June in United States v. Windsor, striking down a part of the federal Defense of Marriage Act that denied federal marital benefits to legally married same-sex couples.

He did not spell out in full all of the measures his department will take, but did provide a few details on these initiatives:

** Each spouse in a same-sex marriage will gain the right in civil and criminal cases in court to decline to give testimony against the other spouse — the so-called “marital privilege” that is an exception to compelled testimony. That will apply even in states that would not extend the same right to same-sex couples under state law.

** In bankruptcy cases, same-sex couples will be allowed to file jointly for relief from their debts, some debts owed by one spouse or former spouse to another will not be nullified (“discharged,” in legal terms), and domestic support obligations — such as alimony owed to a former spouse — will have to be paid.

** Inmates in federal prisons who are married to a same-sex spouse will have equal rights and privileges, including visitation rights, inmate furloughs to be with a spouse during “a crisis,” a right of a spouse to be escorted to the funeral of an inmate spouse who dies, protection for letters and other communications between spouses, and early release of an inmate from a sentence or a reduction in sentence to allow the inmate to be with a spouse who has become incapacitated.

** If a benefits program is run by the Justice Department — for example, compensation for a spouse’s exposure to radiation and for the loss of a spouse during the terrorist attacks of September 11, 2001 — same-sex couples will become entitled to those benefits.

** If spouse is or was as a police officer, firefighter, or other public safety officer and is killed or gravely injured in the line of duty, the surviving spouse will receive death benefits if the spouse dies and will receive educational benefits.

It does not appear that any of those guarantees of rights or benefits would add to what married same-sex couples had won in the Supreme Court’s Windsor decision, because the part of that law struck down by the Court imposed a ban on equality for same-sex couples in every federal program or activity.

But the new moves by Holder, and similar equality initiatives that a spreading variety of federal agencies have already adopted, are designed to translate that sweeping Court victory into everyday reality.

Has Windsor established a standard of review for sexual orientation under the equal protection clause?

We discussed this in class, and couldn't find any clear language to that effect in the decision.

Nothing like "strict scrutiny" or "rational basis review" stuck out.

Here are a couple takes on that question.

Jack Balkin:

Windsor is a reminder of the fact that the scrutiny rules we teach our students as gospel are a relatively recent invention--less than fifty years old.   They were designed to make it easier to think about when laws are constitutionally unequal. But sometimes they don't really assist our understanding of the issues; they just get in the way.  In fact, you actually can explain Windsor in terms of the existing structure-- it's a "rational basis with a bite" case, and that's how the casebooks (including the one I co-author) will probably classify it. But we should be able to look behind the doctrinal superstructure, which explains little, and see the deeper principles at stake, principles that have a long history in American constitutional thought.  DOMA singled out gay people for special burdens in an important area of social life; it declared their marriages less valuable, and therefore, to that extent, it made them second-class citizens.  Even if this wasn't obvious in 1996, it is increasingly obvious today.

Ilya Solim:

As with some of Kennedy’s other important opinions, the exact meaning of this one is hard to figure out. But what he seems to be saying is that the the Congress’ pursuit of purposes beyond the normal scope of federal authority in DOMA makes the law a “discrimination... of an unusual character” and justifies imposing tougher scrutiny under the Fifth Amendment. According to longstanding precedent, the Fifth Amendment imposes on the federal government equal protection antidiscrimination principles that the Fourteenth Amendment imposed on the states. Fifth and Fourteenth Amendment precedent impose different levels of scrutiny on different types of laws, depending in part on the purposes those laws pursue. Here, Kennedy suggests that the level of scrutiny is higher if discriminatory federal laws are intruding into areas generally left to the states. Later in the opinion, he notes that ““‘[d]iscriminations of an unusual character” [require] especially require careful consideration” to determine whether they are based on “animus” against a particular class, and that “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage... is strong evidence of a law having the purpose and effect of disapproval of that class [gays and lesbians].”

The Elected Iowa Judiciary

Iowa voters aim to vote out state judges who approved the recognition of same sex marriages. This is a reminder that it matters whether judges are appointed or elected.