What the Court’s Gay Marriage Decision Really Says

By Guest blogger Terri Lynn Coop

June 26, 2015 was one of those days when the wheel of history turned. At the center of the social media celebration and barrage of rainbows is the 35-page opinion on marriage equality penned by Justice Kennedy.

As both a lawyer and an ally, I find the opinion to be succinct, elegant, iron-clad, and a doorway to further equal rights activism here in the good old USA. After I held a series of light-hearted law “lectures” on the subject on Facebook, Mike invited me here to the ‘Quest to take a look at some of the key parts, both obvious and less so, of the opinion.

Overall, the Court grounded the opinion firmly in the 14th Amendment rights of Due Process and Equal Protection under the law. Out of that principle has sprung the right to privacy in what the court calls “intimate relations.” Kennedy went straight to the keystone cases such as Loving that struck down racial bans on marriage and Griswold that protects the right of married people to use contraceptives (yeah, that had to be litigated).

“This Court has invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage . . . and confirmed the relation between liberty and equality . . .”

Strong words right there. We can’t have personal liberty without equality.

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

Part of deciphering judicial opinions is to look for the key words and phrases. Here it is “may not.” In other words – NO. No as in Grumpy Cat NO. Nyet. No way, no how are same-sex couples to be deprived of the fundamental civil right to marry.

The Court went on, conflating liberty and personal identity:

“The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

The Court has just connected being gay with personal identity, autonomy, dignity, and civil rights. That sets up a key statement from later on in the opinion.

This Court is heavy on precedent. It is a thread through their decisions. This Court backed this pronouncement up with three cases where marriage rights were affirmed for mixed-race couples, prison inmates, and men who were behind in child support cases. Bottom line, other than the requirements that the parties be of age, of mental competency, and not related by a certain degree of marriage or blood, American citizens have the right to marry whoever they want to.

Answering the “traditional marriage” naysayers, the Court held that times change. Society changes and marriage has changed. Traditionally, women were essentially the legal property of their husband under coverture laws. As society began to accept that women were, you know, people, the equal protection laws were used to throw out the old laws.

“These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

In other words, there is no such thing as traditional marriage. There is only marriage as defined by the mores of society. The odd argument that same sex marriage will cause the demise of opposite sex marriage was dismissed as being “without logic.” That is judicial shorthand for “that’s just weird, shut up now.”

The last big issue addressed was the question of states’ rights and use of the legislative process to parse civil rights. The answer was another resounding NO.

The states’ rights argument centers on marriage being traditionally left to the states to regulate under the 10th amendment. Kennedy says “Okay, you asked for it . . .”

“Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.”

Inherent in the right to regulate is the responsibility to regulate fairly. Or else SCOTUS will step in and make you play nice.

A nod is given to the “religious conscience” opposition movement, but doesn’t bode well for the flurry of what I call hate-pizza laws sure to come pouring out of statehouses in the red states.

“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

Object all you want on a personal level, but when you codify it into law, well then you’ve poked the bear and that bear has big sharp legal teeth. This opinion uses the word “but” like a ninja sword.

More proof that the Court does watch TV and knows what is being said about “activist” and “imperial” courts. This is a reminder of the role of the courts delivered with straight and hard with a verbal clue-by-4:

“An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

BOOM! We don’t vote on the rights of our fellow citizens just like they don’t vote on ours. That’s why they are called rights. Also another warning to states that are toying with discrimination laws – the Court is ready and waiting for you.

This opinion is full of this type of elegant direct language. However, toward the end of the opinion is a single sentence that is easy to miss and could be a game-changer:

“And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

Immutable nature. Civil rights language. In that sentence the Supreme Court of the United States just said that being gay is not a choice, that it is an unchangeable part of a person’s personal identity. That opens the door, really kicks down the door, to sexual orientation becoming a protected class. Twenty-nine states now allow employment discrimination on the basis of being gay. This could be the first pebble in the landslide that buries those and other laws.

That big rainbow out there shines on everyone. We are watching history every bit as important as women getting the right to vote and the Civil Rights Act of 1964. It’s a good time to be an American.

Thanks for the invite!

Terri Lynn Coop is a lawyer by education, a writer by profession, and an unapologetic geek the rest of the time. She’s been known to blog at Readin’ Ritin’ & Rhetoric. Her first novel, a legal thriller, “Devil’s Deal,” is available through Amazon.

Grunt! Oog! Obamacare bad because written by women and minorities!

Me just caveman lawyer. Your modern world confuses and frightens me. But me know one thing:  Obamacare bad because written by white women and minorities.

At least three of these people will probably disagree with the idea that women don't understand the Constitution.

At least three of these people will probably disagree with the idea that women don’t understand the Constitution.

This, almost literally, is what the chief lawyer who argued recently before the Supreme Court about Obamacare said.

In an interview with the Wall Street Journal, he said that this law was different because it was written by “white women and minorities.”  If you can understand why that makes it different from any other law, please enlighten me, but apparently, to Attorney Michael Carvin, that makes it suspect and clearly unconstitutional.  As we all know, we need white men making these decisions about our laws.

Hey, if nothing else, the fact that the people who hired him see nothing wrong with this statement tells you what kind of people are behind this latest attempt to overturn the will of the majority.

Editorial cartoon: The world according to the Supreme Court

Supreme Court: Corporations over women

A few days ago, we learned that dead people have more rights than women.  Now we learn that corporations have more rights than women, too.

As you probably know, Hobby Lobby won their ridiculous case (I wrote about that here, here, and here months ago).   While I am sad, I am not shocked.

I remember being shocked in law school when I read an opinion from Scalia that dealt with a similar issue, as to whether an employer could refuse to provide contraception for women (including abortions) but still provide it for men, and Scalicorporations-over-wethepeoplea’s logic was that the law did not discriminate against women — it merely discriminated against pregnant people.

Later, he ruled that the 14th Amendment which says that there can be no discrimination against “people” didn’t apply to women who wanted to be treated as equals in the military. “That’s different,” he said.

So this is nothing new. Women, in Scalia’s mind, aren’t really “people.”

This is what happens when you make corporations into people. They start having religions and then want to force everyone else to live by their religious laws.

So now religious law is more important than the secular law — but only for employers.  Got that?

Why do these people get to decide how to spend my money?  Health benefits belong to me, just like my salary.  Why does my boss get to decide how I want to use them?  Can my boss dock my salary if I decide to spend it on things he doesn’t like?

That’s the bottom line many people don’t get.  This is about who decides, and once more the Supreme Court has ruled that the power in this country belongs with the corporations and 1%, not with “we, the people.”

I see that the anti-gay religious folks are thrilled. After all, if the religion of the employer is more important than the law, then clearly employers can now discriminate against gays and lesbians if it offends their “deeply held religious views.”

And why stop there? I’m sure there are religious employers whose religion tells them they can discriminate against Jews, or women, or blacks.

Heck, there are enough gods out there that you can easily find one to worship that will allow you to ignore just about every law you want.

So what do we do?  How can we overturn this decision?

Well, you can’t.

What you can do is vote.  Vote in every election, not just the Presidential one.  Fill our government with Democrats who will put into place a single-payer system that we should have done in the first place.  That will solve many problems as well as make this decision completely irrelevant and moot.

Supreme Court once again ignores the Constitution


The Roberts Supreme Court has once again shown that it cares little for the Constitution, legal history, or precedent.  It recently decided that it is perfectly fine for our government to favor one religion.

Yeah, I know, right?  You’d think the explicit words of the 1st Amendment make it amazingly clear.  You’d think anyone who could read would agree that wouldn’t be allowed.  And, in fact, that’s the way it’s always been.

But just like how they decided that (a) the 2nd Amendment applies to individuals and not the military;  (b) money is “speech” and the government doesn’t have the power to regulate campaign contributions;  (c) schools cannot make their own decisions concerning admission policies; (d) the Environmental Protection Agency doesn’t have the power to protect the environment … anyway, I could go on.  In case after case, a slim majority of the Court overturned years of precedent to promote its conservative agenda, and damn the Constitution.

And the public knows that this is political.  It’s so blatantly clear that public support for the Court has dropped from 90% confidence to 44%.   (Still higher than Congress, though.)

Anyway, the Court held that there is nothing wrong with a government leading everyone in a Christian prayer every day.  The basis for this argument was “What Establishment Clause?”  They also completely rewrote American history by arguing that many of the Founding Fathers were Christians and therefore would agree.  (Well, yeah, but they specifically made sure that their religion stayed completely separate from the government by writing things like, oh, I don’t know, The Establishment Clause.)

Christians who rail against Sharia Law thought this was the greatest decision ever.  They only object when it’s someone else’s religion being used.  (And yes, I am aware that there are indeed many Christians who support the Constitution and disagree with this decision.)


When we became an oligarchy

An oligarchy is a government run by a small group of elitists;  in our case, the very rich.  (In which case, perhaps the better term is a plutocracy.)  Today’s Supreme Court ruling was the final deciding factor.

How did we get here, in a place that Teddy Roosevelt warned us about?    money

1.  Reagan’s tax cuts.  It started under Reagan when the tax rates on the super rich were dropped tremendously.  Soon after this, we started going into great debt (unnecessary wars didn’t help any).  Infrastructure started falling apart, education was cut, opportunities started vanishing, and they took the middle class with them.  And the rich got even richer and, therefore, more powerful.

2.  The removal of regulations.  Reagan again.  From the very beginning, our economy went through periods of prosperity and crash, on the average of every seventeen years.  There was the Panic of 1819, the 1837 Crisis, the Panic of 1873, the Panic of 1893, the 1907 Banker’s Panic, and so on up to the Great Depression. Then Franklin Roosevelt put in controls and restrictions on Wall Street and banking and lo and behold, no depressions and no recessions for fifty years. Reagan comes in and removes those and bang! The S&L crisis, the 2001 recession, the 2007 Mortgage crisis, and the 2008 Bush collapse.  But more importantly, the lack of regulations produced less competition as huge businesses and banks gobbled up smaller ones and created monopolies.  This gives us great income inequality, where the vast majority of wealth in America is concentrated in the very few at a level comparable to the period before the French revolution.

3.  Gerrymandering.  This isn’t new, but it has gotten so absurd that it keeps those in power there, with hardly any challenges to incumbents.  Therefore, there is no one “stirring up the pot” and bringing in new blood to change things.  In certain districts, it is impossible for the other party to challenge the incumbent party.  This is terrible for democracy, which — like capitalism — needs competition to survive.

4.  The removal of campaign contribution limits.  With Citizen’s United and today’s McCutcheon decision, the Supreme Court has vested power in the filthiest rich at the expense of the rest of us.  You have to be daft to deny that money is power, and what these decisions do is to create the two great fictions that “corporations are people” and “money is speech.”  This means those in power now have even more means to keep themselves in power, by being able to spend unlimited, uncontrolled, and unregulated money in politics.

Because, according to the Supreme Court, if you bribe a politician quietly behind the scenes, it’s a crime.  But if you do it as a campaign contribution anonymously, it’s protected speech.

I’m sure I’ll have more to say on this latest nail in democracy’s coffin but for now I am just too angry to think.

Supreme Court ready to once again side with corporations over people

Based on the arguments presented at the Supreme Court today in the Hobby Lobby case, the conservative members of the Supreme Court once more appear ready to hold that corporations have more rights than people.  This is not a surprise to anyone who follows the court.

New U.S. Supreme Court Poses For "Class Photo"

It seems that corporations are people, and a corporation can have a religion.  What’s more, their religion is more powerful than your religion, and if you work for them, they can force their religious views on you.

Where is this in the Constitution?  Ha ha!  Didn’t you read the word “corporation”?  That’s all you need to know to determine how Scalia and his pals will vote.

The more liberal members of the Court (the three women especially) questioned how you could determine a corporation’s religion.  “How does a corporation exercise religion?” Sotomayor asked.  A poll of shareholders?  What about shareholders that do not share the same religion as the CEO?

Opponents rightfully pointed out that this could lead to corporations deciding that they could use their religion to justify firing all gays, prohibiting women from working, and otherwise taking away our basic rights.

This has the possibility of rising to the level of “terrible decisions” reached only previously by the Citizen’s United decision which found two fictions to be law:  that not only are corporations people, but  money is speech — therefore corporations have the right to speech much greater than those of us poor individuals.

Well, it will be the most terrible decision until the Supreme Court tops it with the follow-up case later this year that holds that individual limitations on campaign contributions are also invalid … at which time it may just be easier to allow the billionaires to vote for us.

Snobby Hobby Lobby

Tomorrow the Supreme Court will hear one of the silliest cases ever.   Allow me to reprint my thoughts on this from a blog post months ago:

Hobby Lobby claims they are being discriminated against because they are being forced to provide health care which could provide birth control to those heathen women — you know, those hussies who can’t control their libido that Mike Huckabee warned us about.


Hobby Lobby claims to be a Christian corporation. They refuse to even sell Jewish merchandise in the store. (“Want Hannukah gifts? Go elsewhere, Christ-killer!”) They have no problem whatsoever in buying cheaply-made crap from China because after all, the Bible approves slavery.

Most importantly, they claim they have the right to force their religious views on their employees.  Amazingly, a federal judge in Oklahoma agreed with them and held, for the first time that I can see, that a corporation can actually have a religious view.

Fortunately, this is now on appeal, and hopefully clearer minds will prevail.   Many groups are filing briefs opposing Hobby Lobby.

The issue is whether a business can refuse to give health insurance to its employees because of religious reasons.  I am shocked that some of my friends think that this is perfectly fine.  What’s next?  Will they refuse to give you your salary if you buy alcohol with it against their religious views?  Will we have to reduce our own freedoms to make our employers happy?

Should I, as a business owner, be allowed to force my beliefs on my employees? What if my religion believes women should wear burkas and never speak? Should I make all my female employees wear burkas?

The lower court apparently believes employers have powers to ignore laws they don’t like. “If you work here, you have to live by my beliefs, not yours. Don’t like it? Tough!”

I think we instead should say to business owners, “These are people who work for you, who have the right to make their own decisions about health care. You will give them the option, because this is America where we value individual decisions. Don’t like it? Tough!”

Your religion does not give you the right to disobey the law. There are Jamaican religions that believe in smoking marijuana during their ceremonies — tough, that’s illegal. Animal cruelty in the name of religion is illegal. Refusing to give your child medicine in the name of religion is illegal. Religions shouldn’t be exempt from the law just because they “really really believe” something. That’s not what America is about.

Look, if you start a business in America, we expect certain things from you. You have to pay a minimum wage; you have to have a safe working environment; you have to pay business taxes; you have to pay for worker’s compensation; you have to provide health care. Keep in mind that your employees may decide to use their money or benefits to do things you personally disagree with. Don’t like it? Tough. Don’t open a business.

If you don’t like the fact that we have freedom from religion in America, then maybe you should open a business somewhere else, like Iran. I understand they have no problem with you forcing religion on people who work for you.

The future of gay marriage lawsuits

The Utah Attorney General’s request for a stay pending an appeal has been denied by everyone, and now goes before the United States Supreme Court. A stay is granted when the appellant has the possibility of winning the appeal. It would stop the marriages happening in Utah now pending the results of the appeal.

Higher appeals courts do not have to take every case. If they did, they’d never get anything done. Usually they only take a case when at least some of the justices want to overturn what the lower courts did. Even then, if they can’t convince the other justices, the lower court decision will remain. If the Supreme Court refuses to grant the stay, that’s a pretty good sign that they are not interested in taking this case, which means that marriages will continue in Utah.

The Utah court based much of its decision on the Supreme Court’s decision to strike down California’s anti-gay marriage act. Prohibiting gay marriage “humiliates tens of thousands of children now being raised by same-sex couples,” the Supremes wrote, which gave the federal court ammunition it needed to strike down Utah’s laws.

Any law that discriminates must be strictly scrutinized and the state has to show that the discrimination is necessary to achieve an important end. Generic+Gay+Marriange+Legal Here, there is none. Opponents of gay marriage argue that marriage is for procreation (thus nullifying my 31-year childless marriage and prohibiting the sterile and elderly from ever getting married). They say gay marriage harms the children (when there is no evidence whatsoever to support it). They argue that it’s what the citizens of their state want (which didn’t work when they fought to save laws discriminating against minorities and women, either). And then they argue religious reasons (which have no place in our laws).

There is no legal justification to deny gay marriage, and courts are starting to recognize this.

The important thing about the Utah decision is that it may embolden other courts, both state and federal. If this can be done in Utah, the state with the largest percentage of people still against gay marriage, then why not Pennsylvania, where a majority favor it?

It’s also discouraged the fanatics who are fighting against it. Even some of the most conservative observers are now admitting that this is inevitable so it’s better to wage fights elsewhere.

What we really need is one of the conservative Supreme Court members to retire or, in the case of Thomas, be impeached. (But that’s a different topic for a different day.) If Obama could appoint one more justice, great changes could take place and many of the worst decisions made by the Supremes in the past twenty years could be reversed. (Well, except for Gore v. Bush.)

Editorial cartoon of the day