On Monday morning, the U.S. Supreme Court refused to hear any of the seven cases pending before them regarding same-sex marriage, allowing lower court rulings that overturned statewide bans to stand. The Supreme Court took the action without a guiding opinion, which surprised legal scholars who thought that the Supreme Court would weight in one way or another. However, notwithstanding the court’s silence, the consequences for the country, and for Alaska, are huge. Most immediately, it means that same-sex couples in Utah, Oklahoma, Virginia, Wisconsin, Indiana West Virginia, North Carolina, South Carolina, Kansas, Colorado, and Wyoming will be able to marry immediately or in the near future. In all of these cases, the federal court of appeals for their respective circuits struck down bans—like Alaska’s constitutional ban–that have prohibited them to marry.
Alaska belongs to the Ninth Circuit Court of Appeals, which also covers Arizona, Idaho, Montana, and Nevada. Currently, the court has two gay marriage cases in front of it—one from Idaho and one from Nevada. It’s likely to decide on those cases soon, and watchers of the Ninth Circuit predict that the court will rule in favor of gay marriage. The decision could get appealed, but there’s no reason to believe that the Supreme Court would overturn the Ninth Circuit’s decision when it didn’t overturn the other circuits’ decisions. If it did so, mass confusion and chaos would ensue, something that the Supreme Court tends to avoid.
On Friday, a challenge to Alaska’s gay marriage ban will be heard in front of a federal district judge in Anchorage at 1 p.m. The judge, Tim Burgess, might wait before issuing a decision until the Ninth Circuit, which has jurisdiction over Alaska federal courts, decides its two cases. Or Burgess, a fair and impartial judge by most accounts, including my own, might want to issue his own decision for the historical record.
In any case, there’s little doubt that Alaska, and many of the rest of the states, will soon see their bans against same sex marriage overturned.
As David Codell, the constitutional litigation director for the National Center for Lesbian Rights and co-counsel in the Utah case, put it in Slate:
It seems inconceivable that the Supreme Court would permit marriages to go forward in the five states at issue if the justices had any inclination ultimately to rule that same-sex couples do not have a constitutional right to marry. Today is one of the greatest days in the history of LGBT rights in the United States. It is very rare for the Supreme Court to deny review when a state constitutional amendment is struck down.
Contact Amanda Coyne at amandamcoyne@yahoo.com
Radical,
I appreciate your response; however we are a dynamic society and change is upon us. There is nothing wrong with the courts determining the constitutionality of laws including provisions ensconced in individual State Constitutions or even the US Constitution. I voted for the Alaska Constitutional amendment regarding marriage and now have changed my mind. Had we not had that allowance to change by legislation or court decision we might still allow men to own other men as that was recognized as “constitutional” at one time and was even upheld by the US Supreme Court in Dred Scott v. Sanford.
Lynn,
Lest anyone misunderstand, I will say at the outset: I do not believe for one second that anyone should suffer mistreatment because of their sexual preferences, period. I believe that people should have the right and ability to form relationships with whom they choose, provided they are within the bounds of law, whether I agree with their choices or not.
That said, allow me to offer a couple of comments as food for thought. Though I don’t always agree with your viewpoints, you have always struck me from your writing as a person who believes strongly in “the principle of the thing,” as I do.
1) The Civil Rights Act = law, passed by elected officials, who are acting on behalf of and accountable to the people who elected them.
Court decision = legal interpretation, made by appointed judges, who are essentially accountable to no one.
These are 2 very different ways of enacting something. Laws that I don’t agree with get passed all the time. There is a lawful recourse for having them changed, holding those who passed them accountable, and if I work toward that end unsuccessfully through the legislative process, it is possible to come to terms with the fact that my viewpoint on a particular issue is likely out of step with the majority of the population where I live. There are options for ballot initiative and referendum, which are seeing a lot of use in our state these days. In our republic, we can take comfort when the dust settles at the end of the day that “the people have spoken.” This is a core principle of our form of government, and is as it should be.
When an unaccountable judge or set of judges strikes something down by their interpretation, there is not nearly the level of recourse available to the public. Yes, society evolves, and so do our values. In this case, Alaskans followed the process laid out to amend our constitution, which I believe showed clear intent to establish traditional marriage as a fundamental law of our state. This was not a simple matter of statute – it had to meet a high bar set in the Constitution for both legislative and public approval. That has now been set aside, and other than a further legal appeal, I am not aware of other recourse available to Alaskans. If societal values are evolving to the point where same-sex marriage is acceptable, let it be established in law by the proper legal channels, just like occurred with the civil rights law, recognizing women’s right to vote, and so many other issues. I am deeply concerned about executive branch officials (whether state or federal) that would reinterpret or selectively enforce law, and judicial officials who would so lightly set aside something enshrined in our constitution as a matter of plain language.
And frankly, having seen many of your posts that express concern for the proper checks and balances of our branches of government, I am surprised you are not more concerned about the constitutional aspect of this action. You have made it clear that you expect a governor to follow the plain language of the constitution when making hiring decisions related to legislators. Why not the same concern when a court sets aside a piece of our constitution without concern for Alaskans’ will and intent in establishing it? This does not bode well for our individual constitutional freedoms or states’ rights for future generations.
2) Scenarios I presented have been characterized as invalid, absurd, laughable nonsense, etc. And I will grant you they all seem far-fetched. However, I would encourage you to read this, and tell me exactly how far-fetched:
http://nypost.com/2014/10/04/courts-will-decide-if-chimps-should-have-same-rights-as-humans/
The thing that most sticks out in a reading of the article is the emphasis on the years-in-the-making aspect of the case. And again, this is a court process, with interpretive decisions made by judges, who hopefully apply the law as intended by voters, but are ultimately largely unaccountable. I do not expect the case to be successful, but neither do I suspect the efforts will stop.
And remember this piece, referenced by Amanda in a recent news roundup?http://www.huffingtonpost.com/2014/09/26/oregon-court-animals-victims_n_5883588.html
And more disturbing, you can find academic research out there supporting the concept that: “The basic tenet behind describing the human sexual interests … is that erotic interest in children versus adults is just as integrated into a person as is erotic interest in males versus females.” (see: http://individual.utoronto.ca/james_cantor/blog1.html).
I do NOT believe that sexual attraction to children should be equated to same-sex attractions. But there are some folks that do believe that and may one day be pressing the issue in the courts. If we cannot count on our right as citizens of our state to establish our will as the law of the land in the Constitution as a preservation of our collective values, what recourse will we have then?
Regardless of one’s personal feeling for or against same-sex marriage, I think we should all be concerned about the trend away from the rule of law as these decisions are handed down, and what it means for our liberty in the long run. When we become subject to the whims of those in office or in the courts instead of the rule of law determined by the self-governed, it becomes dangerous for everyone.
This is laughable nonsense designed to avoid the issue of fairness and basic human decency, which is at the heart of this issue. ALL rights and privileges conferred by the constitution come with responsibilities and limitations. Not yelling “fire” in a crowded theater, for example, is a reasonable restriction on First Amendment rights. Nobody argues that.
Similarly, reasonable people who care about fairness and basic human decency understand that extreme hypotheticals in defense of institutionalized discrimination is not acceptable.
If two consenting adults now want to marry let them. Stable domestic relationships are not contributing to our social problems relating to crime, poverty, addiction, child neglect, single parent families, cost of education, cost of medical care, deficit spending, etc.
Society evolves. I understand that not all change is good; however, some proves to be after passing the test of time. I purchased some property in Anchorage and noticed that the 1964 Civil Rights Act had voided the covenant restrictions that I could not sell the property to anyone not of the white race. Remember at one time the idea of allowing women to vote was guaranteed to rend the social fabric.
If you are reduced to arguments warning about allowing marrying animals, children, plants, and other life forms you are not convincing very many that your point is valid. The law will evolve to frame this new paradigm for the good of society. Lastly we are not saving money by allowing this as state benefits are now payable to domestic partners so the fiscal justification to limit marriage is gone.
Forgot to include a name in the post above.
Point taken. However, it seems we agree that society does have the right and responsibility to offer some limitations on individuals. We just may not agree where those lines should and shouldn’t precisely be drawn. I ask again, would “consenting adults” include close family members? Or does society have a right to prohibit that behavior? You may find down the road that my absurd suggestions are not as far-fetched as one might think.
My frustration stems largely from the fact that there is a lawful process for these discussions to be had in the public eye and with public input , and yet the route seemingly employed most often is a lawsuit. The Constitution has been amended before, and it can be amended again, but folks fighting for same-sex marriage seem disinclined to go that route, and I think it does a disservice to society. When courts start dismantling by reinterpretation what has been lawfully adopted into our Constitution, regardless of the particular issue, the fundamental power of government of the people, by the people, and for the people, under the rule of law also unravels.
Dear StraightLaced Radical –
Your imagination is far more kinky than mine. I appreciate the absurdity of your suggestions and admit that I failed to specify “between consenting adults.”. Now, without being judgemental, I’d like to suggest that you consider discussing some of your scenarios with a professional that might be able to help you.
Arctic Man,
You make the following statement in your post: “There should be no rules restricting one’s love or lifestyle,” and I am wondering if you truly mean that. For the sake of a public discussion, consider the following hypothetical scenarios:
1) One’s desire for love or lifestyle is to form a married family unit with 3 or 4 other adults, of the same or other gender, who may or may not be already married to another adult.
2) One’s desire for love or lifestyle includes a 45 year old man or woman wanting to marry and have sexual relations with a 12 year old, either of the same or other gender.
3) One’s desire for love or lifestyle is to marry and have sexual relations with a close family member — a sister, a grandfather, a son or daughter.
4) One’s desire for love or lifestyle is to marry an animal such as a cat, a dog, or a horse. (Animals have recently had “personhood” rights recognized by some entities).
In your view, would society have any right or responsibility to restrict a person’s love and lifestyle in any or all of these situations?
I am so pleased with the Supreme Court’s refusal to hear these cases. For too long the LGBT community has been forced to live in an unfair world. The prejudice and lack of equality for the LBGT community is truly the civil rights fight of this generation. This isn’t a Democrat or Republican issue. It is an issue of humanity, understanding and tolerance. There should be no rules restricting one’s love or lifestayle. Again, praise the Lord Almighty. My God is a kind and generous spirit that loves all his children regardless of race, gender or sexuaal preference.
Another blow against the rule of law. If you can’t meet the process for changing the constitution laid out in the constitution for whatever your agenda happens to be, just go the lawsuit route.