Popcorn and a Movie: Part I

Hey guys, come on in!  Welcome to the Blue Truck Theater.  Admission is free, but here's the deal: first you have to get through all the popcorn - i.e., my exposition of the way I see the legal issues now before the Supreme Court - then you can watch the movie, which I guarantee will be a crowd-pleaser. Deal? Now turn off those damn cell phones, and take that gum out of your mouth.

Everybody else and his brother is expatiating on these cases, even when they don't know what the hell they are talking about, so I figure I might as well too, and if you pay attention, you just might learn something you didn't know before - though in all honesty, I must begin by telling you that I am not an attorney or an expert in the law.

But a few things I do know, and I think I have the overall gist of things right, so I'll share those little nuggets with you, and add my observations, which you can take or leave as you please. Some of this is a repetition of an exchange I got into over on Box Turtle Bulletin, but I'd already planned to write this post on the Blue Truck, as much to jog my own memory as anything else.

First of all, the most obvious point to make: nobody has a crystal ball, and no one can be certain how the Court will rule on Prop 8 and DOMA until they issue the actual rulings. When we do get the rulings, to avoid being unduly elated or disappointed, it's important that you understand what the Court is deciding, and why, and what the constitutional background is, the rules of the game, as it were.

Continued after the jump . . .

Let's start with the general history of marriage, and I'm taking great leaps here, omitting many details in order to give you the essence of things in a short space. As I've written numerous times before here in the Blue Truck, marriage was not invented by the Christian church. People were "marrying and giving in marriage" long, long, long before the time of Christ, and even long before the Jewish religion was started, or any part of the Bible was written - as even a brief dip into any textbook on the history of ancient civilizations will show.  Even your Bible proves that, if you want to look in that direction.

Potiphar's wife putting the move on Joseph,
centuries before there was even a Jewish religion.

Now the Church did at an early date begin to say that the marriage of baptized Christians was a sacrament, whatever that might mean, and in the course of centuries hedged Christian marriage around with all sorts of teachings and restrictions and ceremonies under Church law; which became, after Christians took over the government of the Roman Empire in the 300's, part of the imperial law, and subsequently of the various nations of Europe which succeeded the Empire. The Church, which had come to hold legal powers through its own court system over all sorts of things we now consider to be strictly governmental business, defined and regulated marriage, religiously as well as legally, in Western Europe for over a thousand years.

But ever since the Reformation and the break from Rome by England in the 1530's, our Anglo-American system of law has recognized only the civil aspect of marriage, not the sacramental part, which is left up to the churches to decide. England, and later the American states, allowed ministers to preside at weddings and sign the marriage certificate, at which point in time they were performing an action on behalf of the state; but it was the civil law, not the teachings of the Church, which determined what a valid marriage was for the purposes of the courts:  a civil contract between consenting adults.  Which is still the legal definition of a civil marriage.

Bluff King Hal told the Pope where to get off, and took
"this empire of England" on an independent course.

Conversely, whereas before the Reformation, only the Pope could annul a marriage by his power of dispensation, after the break with Rome only Parliament, or much later the legislatures of American states, held the power to legally dissolve a marriage - which made the process of getting a divorce rather expensive and consequently rather rare, until the divorce laws began to be loosened and expanded in the later 19th century. Which again demonstrates the distinction between a civil marriage and a religious one. A couple who are married in front of a judge, or who are divorced by a judge, are legally married or divorced regardless of what any church thinks they are, here in these United States as well as in most other countries of the western world today.

Now when the various sovereign states united together under the Constitution, the powers of the federal government were limited to those explicitly listed therein - the enumerated powers. All other powers are "reserved to the states, or to the people." The power to regulate marriage is not among the enumerated powers, and therefore has always been left up to the states. The federal government has merely accepted as married any couple that a state says was validly wed within its borders. Even you and your 13-year-old cousin.

Rocker Jerry Lee Lewis, 22, and wife Myra Brown, 13, in 1958:  
a worldwide scandal after an English reporter broke the story
of their marriage, which was perfectly legal in Louisiana.

Furthermore, the Constitution was designed to remedy certain defects of the weak Articles of Confederation that preceded it, as I know all you boys remember from 8th-grade civics class, right? Hey you in the back row - wake up there! So a robust point was made of the full faith and credit clause in the new Constitution, which basically says a state has to recognize the official acts and records of every other state. For many obvious reasons, a federal union would be completely unworkable without this provision. Therefore, if your great-great-great-great grandparents got married in, say, Virginia, and later moved to Texas, to take but one example of this clause's effect on people, then Texas had to consider them as a married couple; they never had to get remarried in Texas, or in any other state to which they might move or travel through. A valid marriage contracted in one state was, by and large, recognized in every other one, and by the federal government too.

In 1857, the Supreme Court told Dred Scott that as a black man,
he was entitled neither to freedom nor to citizenship.  In the same
ruling, they also invalidated the Missouri Compromise of 1820,
partly because it made citizens of nonwhite people in the northern
part of the Louisiana Purchase - thus providing one of the main
sparks that set off the explosion of the Civil War.

A major exception was interracial marriage. The states of the defeated Confederacy, once readmitted to the Union, were loath to extend any civil rights to the newly freed blacks - who, by the way, swarmed to get married after they were emancipated. Under slavery, they had no right to a legal marriage with anyone, even a fellow slave. In some places, they may have gone through unofficial ceremonies like jumping the broom - analogous to the commitment ceremonies that gays and lesbians have been having ever since Stonewall if not before - but such ceremonies had no standing at law, and conferred no rights. Slaves could still be, and many were, sold off at any time, forever separated from their spouses and children. They had no rights, any more than a cow or a horse; and being merely someone's property, not free and equal human beings, they had no legal standing before the courts, so they could not sue to protect themselves - even if they were free blacks, they were still so subhuman, so completely inferior to whites that they were not even citizens of the United States, which was the basis of the infamous Dred Scott decision.  Some religious thinkers of the day even questioned whether black people had souls.

After the Civil War, although they could now legally marry, blacks were still the victims of discrimination in many ways. Therefore, Congress enacted, and a sufficient number of states ratified, the Fourteenth Amendment, which came into effect in 1868, extending the guarantees of the Fifth Amendment to the citizens of all states: due process and the equal protection of the laws. Though aimed initially at protecting the civil rights of blacks, over the following decades, courts came to interpret the Fourteenth Amendment as extending all the protections of the Bill of Rights to all Americans, and thereby limiting what either the federal government, or any state government, could do in restricting a person's rights and liberties - unless the state could show a very, very good reason to do so.

Article from the New Orleans Daily Picayune, June 9,
1892, describing the arrest of Homer Adolph Plessy.

Nevertheless, the prevailing racial attitudes of the time were too strong for the courts to resist; and so by 1896, the Supreme Court ruled in Plessy v. Ferguson that a state could indeed segregate the races by law in housing, education, transportation, and other areas, which was not successfully challenged until Board v. Brown in 1954. In the meantime, as far as I know, the federal government may have recognized interracial marriages in states where they were valid, but an interracial married couple who moved to a state where it was not recognized, and was actually criminalized, could find the sheriff breaking down the door of their bedroom in the middle of the night, before being hauled off to jail as actually happened to Mr. and Mrs. Loving in 1958, who then took a lawsuit all the way to the Supreme Court, which declared all prohibitions on interracial marriage unconstitutional in every state in 1967.

Mildred and Richard Loving on June 12, 1967.  Eight years earlier, a
Virginia court had sentenced them both to a year in prison for the crime of
getting married.  Sentence was suspended for 25 years, providing they
left the state, which they did, settling in Washington, D. C.

Prior to this time, the Supreme Court had ruled that laws making interracial marriage a crime, even a felony, did not violate the Fourteenth Amendment because whites and blacks were punished equally. But by 1967, in the middle of the Civil Rights Era, when segregation had been challenged in many places and exposed on nationwide television for the ugly thing it was, attitudes outside the South had changed so much that the Court overturned its previous rulings.  It's worth quoting here what they said in their unanimous ruling on June 12, 1967:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

I might mention here that California's Supreme Court had already ruled 19 years earlier, in the case of Perez v. Sharp (1948), that its state anti-miscegenation law violated the Fourteenth Amendment; but you see that the federal Supreme Court, as well as the attitudes of the rest of the nation, especially the South, lagged behind California in this regard. As we have likewise seen happen with the same-sex marriage issue.

Soon after came the Stonewall riots of 1969, and the gay lib movement that proceeded from them - but since I know you guys are already familiar with the legal advances we've made, step by step, over the last four decades, let's zoom on ahead to present time, now that we have all the background history we need under our belts. And this is stuff you may want to refer back to whenever those Supreme Court rulings come out and you try to make sense of them.

Pantsuits worn by longtime gay-rights activists and lovers
Del Martin and Phyllis Lyon at their San Francisco weddings
in 2004 and again, legally, in 2008, shortly before Martin's death.
They had been a committed couple for more than 55 years.

First, about Hollingsworth v. Perry, the Prop 8 case. Ultimately, this traces back to those same-sex weddings in San Francisco in 2004, when then-Mayor Gavin Newsome allowed gay and lesbian couples to marry there, before being stopped by a court order that held those marriages to be invalid. Several of those newly married couples then went to court, and eventually after several layers of appeals, their cases were consolidated into one case, which was heard by the California Supreme Court. (In the meantime, it should be noted, California had extended practically all the rights and benefits of marriage, except the name, to same-sex couples in domestic partnerships.) On May 15, 2008, that Court ruled, in a sweeping decision, that California's prohibition of same-sex marriages, enacted as a regular statute law by a voter referendum in 2000, violated the Equal Protection Clause of California's Constitution - not the federal Constitution. Thus, the high court ruled, gay couples could not be barred from marrying in California, which they did so in droves, beginning on June 17.

However, as you may recall, on Election Day in November of that same year, at the same time that Californians voted 61 to 37 percent for Obama, they also voted 52-48 in favor of another voter referendum, Proposition 8, which immediately enacted an amendment to the California Constitution banning all same-sex couples from marriage. The California Supremes later ruled that Prop 8 was validly enacted by the voters, although they also ruled that couples who had married between June and November of 2008 would continue to have valid marriages. At about the same time, the American Foundation for Equal Rights was founded by actor-director-producer Rob Reiner and others to file a suit against Prop 8, Perry v. Schwarzenegger (on appeal known as Perry v. Brown, and at the U. S. Supreme Court as Hollingsworth v. Perry), in the Federal District Court for Northern California, challenging the law under the provisions of the federal Constitution.

Judge Vaughn Walker during a speech in 2008.

On August 4, 2010, Judge Vaughn Walker announced a landmark ruling, detailed with 80 findings of fact, that struck down the Prop 8 ban on same-sex marriage as a violation of the Equal Protection and Due Process Clauses of the federal Constitution. California's Attorney General was by that time Jerry Brown, who declined to appeal the case further, citing its unconstitutionality. However, after some legal wrangling, proponents of Prop 8 were allowed to appeal the case to the federal Ninth Circuit Court of Appeal, which upheld Judge Walker's ruling on narrower grounds, and stayed the effect of its ruling pending appeal to the Supreme Court.

At this point, I'm going to turn the podium over to guest lecturer Matt Baume for a few minutes, who will now concisely explain the arguments contained in the Supreme Court brief - Yankee boy has godawful fashion sense and talks way too fast, so feel free to hit the rewind button if you miss anything:

(No, this is not the movie I promised you - it will come at the end of Part II. 

And be much more entertaining than a legal discussion.)

So - AFER attorneys Ted Olson and David Boies are asking the high court to declare that Prop 8 (or more precisely, the California constitutional amendment it created) violates the federal protections of Due Process and Equal Protection under the Fourteenth Amendment - or, if they can't see their way clear to go that far, simply to dismiss the appeal altogether because the proponents of Prop 8 who stepped in when the state of California declined to defend the law, are not legally entitled to do so - that is, they lack legal standing (a show of harm or injury to themselves caused by the overturning of the law).

This gives the Supremes more than one way to decide the case: they can either A) strike down Prop 8 as being an unconstitutional violation of the fundamental right to marry, or B) they can throw out the case because the proponents have no right to defend the law, being as they cannot be harmed by its overthrow. Either way, you see, Judge Vaughn Walker's magnificent decision stands - thus, whatever the Supremes decide, gay marriage is sure to be legal again in California, once they issue a ruling, and the Ninth Circuit subsequently lifts its stay.

Unless - the Supremes were for some unaccountable reason to rule that Prop 8 does not violate the federal constitution (I see no reason why they would, and I don't think there are five votes in that direction) - or the Supremes order, as they could do, that the Ninth Circuit re-hear the case, based on the question of standing, or on some other legal technicality I can't begin to imagine. And I'm not smart enough to tell you boys what that might be, but they could possibly think of something, anything, to get them off the hook of saying that same-sex marriage is a constitutional right. Which your Head Trucker just does not think a majority of the Court wants to do at this time - that would be getting a shade too far ahead of public opinion, and the Court traditionally goes no further in its decisions than it absolutely has to.

Yeah, yeah, I know you've read all these news stories in recent weeks about how a majority of Americans now favor gay marriage. Well, maybe - just maybe. But even if that's true, the approval is just a little above the fifty-percent mark nationwide, and well below that in many states. Go take a look at what statistician extraordinaire Nate Silver has computed on levels of support for same-sex marriage in the various states.

And this is as good a time as any for us to all take a little break before I resume with Part II, focusing on the other case, United States v. Windsor.

Intermission