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Friday, October 21, 2016

After President Obama became the first president ever to speak out for gay equality in an inaugural address, it wasn’t too surprising that his administration filed a brief calling on the Supreme Court to strike down the Defense of Marriage Act (DOMA). The Department of Justice had for years refused to defend the law, forcing austere Republicans to spend millions arguing for federal discrimination against same-sex couples.

The president’s decision to file a friend-of-the-court brief in the case challenging California’s Proposition 8, which amended California’s Constitution to prohibit same-sex marriage after the state’s Supreme Court ruled gay couples could marry, is a much bigger deal. It’s a bigger deal than even becoming the first president to say he personally believes that marriage is a right all Americans should enjoy, as he did in a press conference Friday.

The key to the brief filed by President Obama’s Solicitor General, according to The Washington Post‘s Greg Sargent, is the idea of “heightened scrutiny.”

“That means the court should hold their rationale for discriminating to an extremely high standard, and strike them down if they fail to have a credible justification,” Sargent writes.

If the Court accepts that reading, as a lower court has, the government argues that Prop. 8 does not meet that “heightened scrutiny.” If this is true, the seven other states that allow same-sex couples civil unions would likely have to allow same-sex marriage.

Critics call this the “eight-state solution” and fear it would prevent other states from offering civil unions for fear of it becoming marriage.

But some who support national same-sex marriage — including conservative Ted Olson, who was George W. Bush’s Solicitor General and is now arguing against marriage discrimination — say the Obama administration’s stand on the Prop. 8 case is exactly right.

“If the Court agrees with the United States that ‘heightened scrutiny’ applies, that is a clear path to marriage equality across the United States, because marriage bans in other states cannot satisfy that standard, either,” Olson wrote in an email to Sargent.

While this would not trigger a victory similar to that in the case of Loving v. Virginia, where the Court struck down all laws banning interracial marriage, a victory that accepts the Obama opinion could “give gay advocates a powerful weapon to challenge other state laws around the country banning gay marriage, and they’d likely be toppled as unconstitutional — one by one,” according to Sargent.

Forcing conservatives to have to defend discrimination against same-sex couples quickly reveals how empty the arguments against gay marriage are. Since the First Amendment bans the strained Biblical justifications social conservatives like to offer, they’re quickly forced to make arguments about the importance of being able to reproduce, which even conservative judges are likely to find laughable.

In a press conference at the White House on Friday, President Obama responded to a question about why he didn’t call for marriage as a right for all Americans by saying, “And what we’ve said is, is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it, and if the state doesn’t have a good reason, it should be struck down. That’s the core principle, as applied to this case.”

He added, “So the basic principle, though, is let’s treat everybody fairly. Let’s treat everybody equally.”

It seems the nation is a poised to evolve on same-sex marriage as quickly as our president has.

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  • charleo1

    My opinion is, Rights protected in the Constitution, like equal treatment under the law, should
    not ever be put up for a vote. For example, should an American suspected of terrorism aganist
    the United States, retain the Right to a speedy trial, and to face his accusers in an open court,
    if by doing so, it would compromise National security, and the life of the witness, who resides
    outside the US.? If such a question were asked of voters, they may very well assume the State
    is correct in it’s contention such individuals are guilty, and that confidential sources would be
    put in danger. And so, vote in the affirmative, without requiring the State to first establish guilt.
    What we have done then, is to allow the State to ignore it’s burden of proving guilt, before the
    suspension of the individual’s Constitutional Rights. Anyone now charged with such an offense,
    is presumed to be guilty. And now, other groups, and individuals are much more likely to have
    their Rights suspended, for other, “necessities” the State deems approiate, “For the good of,”
    Or, “The protection of,” society. This is the peg those opposing same sex marriage hang their
    cap on. They first contend, these otherwise law abiding individuals, are choosing by their own
    volition, to engage in behavior not sanctioned by the State. Ignoring the growing scientific
    evidence of a genetic component. If the State were to acknowledge this component, anti-
    discrimination laws aganist race, gender, religion, age, or disabilities, already on the books,
    could be found to apply to the LGBT, groups. Secondly, the very questionable, Defense of
    Marriage Act, or DOMA, would be struck down under the equal protection clause in the
    Constitution. Finally, few issues have seen a greater turnaround of public opinion, as has the
    issue of Gay Rights. As DADT, followed the path taken by the policy of a segregated, military.
    The last three States, where the issue of recognizing, and allowing same sex marriage, was
    approved by voters. After more than a decade, and a half of banning the recognition of these unions, in State Constitutions. Today it seems closer than ever that, like women’s suffrage,
    or, inter-racial marriage. Americans continue to make the right decisions, as we continue
    our journey, towards a more perfect union.

  • billbear1961

    There is no rational argument to justify continued discrimination against same-sex couples, and the perpetuation of legalized discrimination based purely on wilful ignorance and bigotry—religious or otherwise—must, by definition, be HATEFUL to any man or woman of good faith.

    In these circumstances, there is no reason ON EARTH why millions of Americans should continue to tolerate relentless second-class citizenship in their own country.

  • Moribund Cadaver

    The Facebook comment by Lila Pardue exemplifies the irrationality of homophobia and fear mongering. “I don’t hate the gays. I just think they represent evil in every form and need to be stopped.”

    This kind of baseline nonsensical attitude, born of conflicting social conditioning and personal discomfort, is what the country is evolving past. The numbers are in. If you’re below the age of 30, you’re far less likely to have illogical beliefs about basic human rights and equality under the law. Despite a modern narrative put in place by the ultra-right wing alternate reality factory, the United States is not a theocracy and not a nation run by the Bible. It is a secular society, and that secularity is essential to protecting the rights of the religious – and even the rights of bigots, though they may not be able to understand this.

    Your personal cooties do not get to determine what fundamental rights other citizens have. You can hate them all you like, and remain convinced that they are evil and will destroy society (no matter how counterfactual these beliefs). But the power of your own problems stops at the barrier of your skull. It doesn’t get to come out and warp reality.

    • “Let’s legalise paedophilia or Bestiality or Rape” are favourite things to cry out for the likes of Lila Pardue. I guess the term” between consenting adults ” is something they can not grasp. People like her are just idiots who are ignorant and stupid, some of their beliefs are so ridiculous, they’d be laughable, if they weren’t so offensive.