The nine justices and five lawyers who will argue the gay marriage cases at the Supreme Court on Tuesday morning will center their debate on a simple question: “Who decides” state marriage policy?
Lawyers for the dozens of gay couples in Obergefell v. Hodges and three companion cases will argue that the 14th Amendment, written after the Civil War to guarantee equal treatment and due process to blacks, also guarantees them equal access to state marriage licenses — and recognition of those licenses in all states.
“The right to marry the person of one’s choice is a fundamental freedom,” April DeBoer and her co-petitioners said in their brief in DeBoer v. Snyder.
Moreover, when a couple marries, “they vow to be wed until death — not state lines — ‘do us part,’” widower James Obergefell’s attorneys said in their brief.
Denying the licenses to same-sex couples and their children is also demeaning, humiliating and wrong, and there aren’t any rational reasons to exclude gay couples from marriage, the petitioners’ lawyers added in their briefs.
The states — Kentucky, Michigan, Tennessee and Ohio — argued that the freedom to self-govern is at stake.
Their laws reflect the historical view of marriage: that it is the union of one man and one woman; is primarily child-centered; and carries the inherent idea that conjugal, male-female sexual relations will occur within the union and result in the birth of children.
Such a view of marriage based on biological complementarity and procreation is clearly constitutional, and since the 14th Amendment “does not dictate any particular marriage view,” courts are “not in a position to impose one,” said the brief filed on behalf of Michigan Gov. Rick Snyder.
The democratic process is “made” for people of a state to resolve fundamentally differing views, and “how to define marriage is no exception,” the brief said.
The states further asserted that gay marriage is a new social experiment, and they have the right to “wait and see” what its real consequences are “before changing a norm” that has been socially accepted for centuries.
Tuesday’s arguments are also likely to include the major legal issue of how courts should treat claims of discrimination for sexual orientation.
Courts now show very little tolerance — if any — for different treatment related to such things as race, sex or national origin.
However, sexual orientation discrimination has continued to be treated on a case-by-case basis. The Supreme Court in particular has declined to make a sweeping statement about whether sexual orientation claims should be handled under a (more lenient) rational-basis review, (tougher) intermediate scrutiny or (highest-threshold) strict scrutiny.
Gay rights advocates are hoping for an intermediate or strict-scrutiny standard of review, as it would greatly assist them not only with winning marriage rights, but pave the way for countless anti-discrimination laws affecting lesbian, gay, bisexual and transgender people.
The states in Tuesday’s arguments will call for rational-basis review, as they believe their long-standing, legitimate reasons to retain the definition of marriage are likely to pass muster.
Source: Top Stories - Google News - http://ift.tt/1FubaDd
0 comments:
Post a Comment