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Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode, we take a look at marriage equality and what seems to be a snowballing success in the courts. Is it possible that by this time next year marriage equality will be a matter of law across the country?
Jessica Mason Pieklo: Wouldn’t that be amazing, Imani?
Imani Gandy: It really would. And I have to say, I’m a bit astonished at how quickly it’s happened. It’s like this domino effect since the Supreme Court ruling last year. It’s just been state after state after state and there have been some people, some hangers-on that are still trying to protest it. But I’m pretty sure that any state that brings, any plaintiff that brings a claim in any state is going to win. And that’s fantastic.
JMP: And the idea that this is really truly about the tip of the iceberg in getting to broader gender equality I think is an important point, and the idea that the fight for equality doesn’t end though when we get marriage equality and that fight needs to continue on. And I think we’re starting to get that conversation bubble up a bit. But I think that’s also a really important point as we’re celebrating this big win and what feels to be a cultural sea change on the issue of same-sex marriage and marriage equality.
IG: I’m also interested as an adopted person if the next big issue that the advocates for LGBT people are gonna tackle is their ability to adopt children, because there are still some states that don’t allow that. I would just be interested to see if that’s going to be the next issue they try and tackle. Or if they try and tackle ENDA, the Employment Non-Discrimination Act. There’s been a movement to try and get that passed but it’s stalled out, but I think partially it’s stalled out because some people are confused about transgender rights and what that means, and whether or not they should be included.
JMP: I’m really glad you brought up the broader family rights context about this because we’re talking about adoption rights, and there are some lawsuits going on in places like Nebraska and Utah to challenge parenting and foster parenting bans that are in place. And this idea that what is really at stake here is this fight against a very rigid and narrow definition of what is an acceptable family, and what that looks like. And that’s an important issue to talk about in the broader context of reproductive rights and justice because that is an element of the conversation for those who are similarly trying to restrict abortion rights, abortion access, contraception—that is all a part of a larger conversation of what is and is not appropriate in terms of family structure.
IG: And then you get people like Paul Ryan who made some claim about single moms—I can’t remember the exact quote—but essentially he was denigrating single moms. And there are politicians, Mitt Romney for example, who have this idea that single moms should be forced to work a certain amount of time because it strengthens their character or some such nonsense. And so I think we’re going to see some changes about what a family looks like, whether or not women can have children, raise children in a safe and unhostile birthing environment. And I think LGBT rights is going to meld with this larger conversation about reproductive rights, reproductive justice as you said, and I’m really looking forward to it.
JMP: It’s been almost a year since the Supreme Court handed down its decisions in US v. Windsor and Hollingsworth v. Perry and set the stage for the marriage equality to take hold in the states. We are here with Prof. David Cohen, an Associate Professor of Law at Drexel University School of Law to talk about marriage equality in the states one year after the Windsor and Prop 8 decisions. So, thank you so much for joining us, Professor Cohen.
David Cohen: Thanks so much. Happy to talk with you.
JMP: So it’s kind of amazing to think not even a year ago the Defense of Marriage Act was still the law of the land, and now I believe we have, what, at least 19 states where same-sex marriage is recognized.
DC: Right. Plus the District of Columbia.
JMP: Plus the District of Columbia. Yeah, so can you help us explain how the Roberts Court’s decisions last summer got us here, because it seems like we got here quickly.
DC: We did, although there was a lot going on before the decision in Windsor, because a lot of states had decided either based in their own courts that their own Constitution required marriage equality or through their own legislative or ballot initiative process decided that they were going to recognize or allow same-sex marriage. So it’s not all about the Roberts Court because this movement has been going on for a long time before the Roberts Court got involved and had a lot of successes. So I think there were 12 or 13 states that had marriage equality before the Supreme Court stepped in.
But what the Supreme Court did was to say for the states that have marriage equality the federal government is going to recognize those marriages, because it would be a violation of basic principles of equality for the federal government not to recognize same-sex marriages. The Court did not address the issue of whether a state has to recognize or allow same-sex marriage. But since the Supreme Court’s decision that issue has been taken to federal courts all over the country in states that do not recognize same-sex marriage, and every single federal judge who has addressed the issue has said, since the Supreme Court decision in June, that the Constitution requires marriage equality. There has not been a single judge in the country who has ruled contrary to that, who has said that there is not a constitutional guarantee. So, this has been a hugely successful movement and it was spurred to even more success by what the Supreme Court did.
JMP: You mentioned a couple of really fine, important legal points I’d like to suss out for our audience here. First is that the Roberts Court didn’t rule on the ultimate issue of whether or not states must recognize marriage equality—we hear it talked about as whether there is a fundamental right to same-sex marriage. Do you see that question getting before the Roberts Court soon?
DC: Probably. I mean, the Court had that question before it. There were two cases before the Supreme Court in June. One involving the federal law which said the federal government was not going to recognize same-sex marriages, and that’s the case the Supreme Court decided, the Windsor case, and said the federal government has to. But there was a second case out of California, involving California’s ban on same-sex marriage, and the Supreme Court sidestepped the issue because the plaintiffs, the two couples that wanted to get married, won in the trial court. The problem was the state of California didn’t want to appeal because the governor of California at the time, Arnold Schwarzenegger, supported marriage equality and said I don’t want to appeal. So it was left to this advocacy group to appeal the case. And what the Supreme Court said was that an advocacy group like that cannot step in and appeal a case. They do not have enough of an interest in the case to do that. So the Supreme Court even though it had the issue of a state ban on marriage before it punted essentially saying this isn’t the right case. But now we’ve got all these cases around the country that are being defended and appealed by governors who are opposed to marriage equality, and one of those cases may get to the Supreme Court. Right now we have at least four circuit courts, which are the intermediate appellate courts in the country, that are considering marriage equality cases and one of those cases could go up before the Supreme Court and presumably none of those cases would have any of the procedural irregularities of the California case in which case it would be squarely presented to the Supreme Court whether there is a constitutional right to marry and whether it is discriminatory to deny gay and lesbian people the right to marry.
JMP: So one of the things that’s been fascinating to me as a court watcher in all of this is the role that Justice Kennedy played because he is, as you know, thought to be a very key vote on marriage equality but I wonder if the Court does take up this question as a fundamental right what your thoughts are on Kennedy’s position since you mentioned the procedural irregularities of the Prop 8 case and also the fact that the DOMA case, the Windsor case, was situated really much more as an issue of an abuse of federal power, of a federalism question which Kennedy likes a little bit more. Perhaps. I don’t know—what are your thoughts on that?
DC: Justice Kennedy has an interesting track record when it comes to gay rights because he has issued some of the most important decisions based in principles of equality and dignity with respect to gay rights. He’s written the opinions and he writes in very flowery language that is inspiring. But at the same time he’s also very confusing in what he writes as a matter of legal doctrine. A lot of people, I mean I don’t anyone who thinks he is clear in what he writes, which puts us in the position of having to figure out what exactly he means for future cases. But I think what is more important than figuring out the finer points of the doctrine is just the trend and that I think he is very clearly in favor of gay rights. He might have some jurisprudential reasons to be unclear—I’m not sure what those might be—but for whatever reason he’s not very clear in what he writes but the outcome is clear, and I don’t think he would change that when it came to marriage equality. If the right case gets to him, and the right case being a case that is clean procedurally gets to the Supreme Court I think he would do the right thing and find a marriage equality requirement in the Constitution. He might do it in a way that is frustrating because it is not clear or because he confuses it with some other issues, but I think he wouldn’t want to blemish his record right now. And he’s not stupid, he sees the way this is going in this country, he sees the what the lower courts are doing, and he’s not going to be the one who stops this.
IG: When you say that he is unclear in his decisions, can you explain a little bit about what you mean by that?
DC: Sure. Almost every law ever written discriminates in one way or another. The law that says you can’t drive faster than 55 miles per hour discriminates between people who drive under 55 and people who drive over 55. But that’s perfectly okay. It’s perfectly okay in almost every circumstance for the law to discriminate and treat some people differently. That’s what it does. It’s just not allowed to do it based on certain categories or certain characteristics. And one of the claims in the world of gay rights is that laws that classify based on sexual orientation, or laws that discriminate based on people’s sexual orientation should be treated the same way as laws that discriminate based on sex or based on race, meaning courts should look at them more closely. And this has been an effort by advocates for a long time to try and get courts to recognize that discrimination based on sexual orientation should be treated similarly. And these claims have been put to the Supreme Court and Justice Kennedy’s opinion in these cases has not clearly answered the question. He has not clearly answered it no, he has not clearly answered it yes. He’s just confused everyone. And so if you read Justice Kennedy’s opinions and try to ask yourself afterwards “well is discrimination based on sexual orientation now like your run-of-the-mill discrimination between people who drive too slow and people who drive too fast or is it like race and sex?” It’s hard to answer that question after you read his opinions because he’s not clear. So we would love it if he were clearer, and I don’t know why he’s not. He’s not a stupid person, that’s for sure. But for whatever reason he can’t bring himself to write with the clarity we would hope on this basic issue. And he gets called out about it. The dissenting opinions, Justice Scalia and Justice Alito are furious with him in their dissents saying “you’re not being clear, you’re basically confusing lots of areas of law.” But he does it anyway.
JMP: One of the things that’s been really interesting to me as the campaign for marriage equality has taken a stronger hold in the states is the pushback we’ve seen with the expansion of state-level Religious Freedom Restoration Acts and these sort of broad, blanket “freedom to discriminate” laws under the guise of religious liberties and I’m wondering if you can just speak to that a little bit.
DC: Sure. Some states have tried to say that if there is marriage equality it is going to be too burdensome on the religious business owner who is now going to have to take pictures at a gay wedding or make a cake for a gay wedding or treat gay couples the same when they come into their business. And some states have tried to get an exemption in their basic law that says that businesses can discriminate on the basis of sexual orientation. And these are interesting issues because there aren’t protections in a lot of states—most states don’t have protections that say right now that businesses are prohibited from discriminating on the basis of sexual orientation. So in most states right now a business owner can discriminate on the basis of sexual orientation already. In most states businesses can refuse to hire someone based on sexual orientation. So these laws about protecting religious freedom are one, unnecessary because the states for the most part allow this kind of discrimination in the first place and, two, because they are really just writing bigotry into the law because it’s saying that we’re going to allow people to treat people differently based on sexual orientation. So the big backdrop issue with the marriage equality cases is that they are not going to solve all the problems in this country with respect to sexual orientation. Far from it. Without protections from employment discrimination, without protections from housing discrimination, without protections for public accommodations discrimination there’s still serious gaps in our laws in this country with respect to gay rights even if every state allowed gay people to marry.
JMP: I’d like to pose one final question to you before we wrap up. At the end of the Roberts Court’s marriage equality decisions Justice Scalia caught a lot of heat from the media saying he was concern-trolling about how the DOMA decision would usher in a new wave of marriage equality litigation. Was Justice Scalia right?
DC: That’s the funny thing about Justice Scalia is that as vile and repulsive as his dissents have been in these gay rights cases, he does get a couple of things right. One, he is absolutely right when he calls Justice Kennedy out for being unclear. When I teach these cases, when a lawyer reads these cases, it’s just impossible to make sense of the legal doctrine if you read a Justice Kennedy opinion. And Justice Scalia says that in his dissent, and even if you disagree with absolutely everything Justice Scalia writes on the substantive issue you have to nod your head and say “yeah you’re right Justice Scalia, Justice Kennedy is not being clear.” But the other thing Justice Scalia does in his dissents is to say “well, based on what Justice Kennedy has written, all of these other things are going to happen.” And so in 2003, there was a case Lawrence v. Texas that held that Texas’ ban on sodomy, which only applied to same-sex sex and did not apply to opposite-sex couples, in that case Justice Kennedy struck the law down and said that it was unconstitutional. And in dissent Justice Scalia said “well the sky is going to fall. One of the things that’s going to happen is that this decision is going to usher in same-sex marriage.” And you know, I had to look at him and read that part of the opinion and say ‘yeah you’re right Justice Scalia.’ I think you’re right. I think the principle that Justice Kennedy rightly announced should lead to same-sex marriage. And he did the same thing in the Windsor case, because after Justice Kennedy’s opinion in Windsor Justice Scalia dissented and said the same thing. A—you’re not being clear. Yeah, you’re right. And B—this decision although it’s only about the federal law, this decision is going to lead to state laws being challenged. And he went so far as to almost provide like a Mad-Lib version of an opinion from a district court judge saying look at how easy it is going to be to replace just a few words in Justice Kennedy’s opinion and find that a state ban on same sex marriage is unconstitutional. I will do it for you. And he struck the words from Justice Kennedy’s opinion and inserted different words and showed how you can take Justice Kennedy’s opinion and find for marriage equality in the states. And you know, I had to look at that part of the opinion and say ‘you’re right Justice Scalia,’ and the lower courts have done the exact same thing. They have said “look, the Constitution requires marriage equality, even Justice Scalia agrees with me.” And so they’re sort of sticking it to him, saying okay you were being sarcastic, witty, clever, whatever he thought he was doing with that section of the opinion and we’re going to take you’re word for it and say you’re right. And so Justice Scalia in his own way has done a lot to help the cause of gay rights in his dissents.
JMP: Who would have thought that it would be Justice Scalia who would provide the form order to usher in marriage equality at the state level. That’s fantastic. I love that image.
DC: Yeah, I wonder who wrote that part of the opinion. Was it a clerk? Was it him? If it was him, is he kicking himself? If it’s a clerk, is he talking to him? Will he ever talk to him, or her, again? Whatever it is, Justice Scalia is by all accounts a smart man. If he didn’t see this coming, that his dissent was going to be used this way it was a huge blindspot. And that’s possibly true. He seems to be completely blinded by his homophobia and bigotry in these dissents and it seems that that’s what’s happening. He is providing a framework for the lower courts and he doesn’t realize that’s what he’s doing because he’s just so outraged that anyone could think gay people are equal. So, you know, he can finish his career and whatever he does with his anger about it while the rest of the country moves forward.
JMP: Well, maybe he and Bryan Garner can write a new book on how not to create form orders for the lower courts.
DC: Yeah, it’s certainly not good legal writing or judicial writing to do what he does, but he can’t help himself. I really do think he’s blinded by his rage and what he thinks is just a crazy thing the court is doing. And you know what? Let him be angry in his corner while the rest of us move on.
JMP: Absolutely. David thank you so much for your time and for helping us walk through what is a fast and furiously changing legal landscape. I anticipate that we’ll have a lot more to talk with you about on the topic of marriage equality, you have a forthcoming book that we are very excited about on anti-choice clinic violence that will be a very important read so hopefully we can have you back to talk about that as well.
DC: I would love that. And thank you so much for talking about this. Like you said, who knows what this will be in a week, but it’s exciting because everything is going in the right direction right now.
Thanks for listening to RJ Court Watch, a legal podcast produced by Rewire. Join us for future episodes where we take a look at the close of the Supreme Court term and break down the pending contraception and clinic buffer zone cases. For more coverage of these issues be sure to visit us at www.rhrealitycheck.org.