Tangled Web May Get Unwound

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    Oh, what a tangled web we weave when we want to deny a basic right to a group of citizens for no reason other than fear and prejudice. When Federal Judge Vaughn Walker ruled that California’s Proposition 8, which banned same-sex marriage in that state, was unconstitutional, his ruling may just have repercussions here in Virginia. (Get ready, Cooch. This may be a biggie. Kookinelli lawsuit alert…)

    In 2006 voters in the Commonwealth of Virginia approved an addition to our state constitution that not only banned same-sex marriage in Virginia but also said that civil unions were banned and that the state would not recognize any marriage or civil union of two people of the same sex granted by another state.

    Virginia Constitution: Section 15-A: “That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

    The only way Virginia could get around the U.S. Constitution’s “Full Faith and Credit” clause, which directs states to respect the records and judicial proceedings of other states, was the passage by Congress during the Clinton administration of the Federal Defense of Marriage Act, (DOMA). The Constitution’s directive to the states also says that Congress can legislate details of that directive. That was the loophole that the DOMA was driven through.

    Now, if the lawsuit making its way through the courts prevails all the way to the Supreme Court on the plaintiff’s behalf, both the DOMA and Virginia’s constitutional prejudice will be overturned.

    A political “odd couple” joined forces to argue the California case, Kristen Perry et al v Arnold Schwartzenegger et al.

    David Boies is a Democrat, the lawyer who argued Bush v Gore before the Supreme Court on the side of Al Gore. Joining him in the Perry case was Ted Olson, the conservative lawyer who argued Bush v Gore for the Bush side.



    Boies
    says Olson’s position “wasn’t expected, but it wasn’t a surprise either. He’s always been a conservative, in my perspective, from the libertarian tradition: small, less-intrusive government, and the need to protect individuals from government intrusion into personal lives.”

    Both lawyers argued that the Supreme Court has repeatedly ruled that the right to marriage is a fundamental one, inherent in the right to pursue happiness. They also argued that it has never been proven that homosexual marriage somehow harms heterosexual marriages. Indeed, in the arguments of the California case, the lawyers for the other side couldn’t come up with any proof that heterosexuals were in any way harmed by same-sex marriage.



    Ted Olson
    told Newsweek that he believes in individual liberty and freedom from government interference in the private lives of citizens. Discriminating against people because of sexual orientation is a violation of both, he said. “This case could change the way people think about one another,”  Olson said. “We are forever putting people into this box or that box, instead of just seeing each other as human beings.”

    When I first heard that this very “odd couple” would be arguing the California case, I felt that the case had an excellent chance of winning equal rights for gay Americans. Hopefully, they will prevail all the way to the Supreme Court. If the case, indeed, is taken by the court and decided in the correct way, that would wipe out all the homophobic laws that states have in place. Then, people who love one another and want to spend their lives together could do just that.

    • teacherken

      and I know a number of fairly strong conservatives who said at the time of its passage it was.

      The judge today described marriage as a fundamental right.  For all practical purposes the Supreme also did so in Loving v Virginia.

      If it is a fundamental right, then it becomes exceedingly difficult for finding a basis on which you can deny someone that right.  You would have to demonstrate a compelling state interest in order to meet the strict scrutiny standard that would apply.

    • blue bronc

      Hashing over much of what I have read this evening I am still not sure the Supremes would cert this case.

       There is the MA DOMA case coming up, and IIRC there might be a case in the 5th or 11th Districts that might end up there too. Not a marriage case but what would be considered a benefit of marriage child adoption. They might want to do all together and get this over with.

      Timing is everything.

      But, if they do take it up I am very sure it would be upheld. And the far right Free?Staters would be going even more nutty than they are right now.