Tuesday, August 12, 2014

As usual, NOM has the Tennessee decision all wrong

Brian Brown - NOM
National Organization for Marriage is in apparent ecstasy following a Tennessee decision upholding the state's ban on same-sex marriage. I'll get to NOM's take shortly. First the basic facts.

Last week Tennessee Circuit Court Judge Russell E. Simmons Jr. ruled that Tennessee's same-sex marriage ban does not violate the US Constitution. It constitutes the first loss for marriage equality supporters since the 2013 Supreme Court decision in United States v. Windsor.
The case involves a couple who were legally married in Iowa and were seeking a divorce in Tennessee. Judge Simmons ruled that the couple could not divorce in Tennessee because the state does not recognize same-sex marriages. The ruling applies only to this couple and the judge recommended that they file an appeal. There are two important elements to the ruling:
  1. The judge cited Baker v. Nelson as precedent. Baker is a 1972 Minnesota case that the Supreme Court dismissed summarily for lack of a federal question. According to Simmons:
    Baker holds that a state's law on same-sex marriage does not violate the equal protection or substantive due process rights under the United States Constitution.
  2. States' rights:
    [The definition of marriage] should be the prerogative of each state. That neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens. 
With respect to Baker the general consensus of federal courts is that summary dispositions may lose their precedential value when doctrinal developments indicate otherwise. Much has happened over the past four decades including Lawrence v. Texas. In state courts there has been no such consensus. This might be why the judge suggested that the couple file an appeal.

As for each state's prerogative to define marriage, the Decision in Windsor is unambiguous. States have the right to regulate marriage but cannot interfere with the constitutional rights of citizens. The Court cited Loving v. Virginia as an example of impermissible regulation. Ultimately, the Supreme Court will decide if same-sex marriage bans are comparable to the interracial marriage ban in Loving.

[Deep breath] Now let's look at the hyperbole of National Organization for Marriage today. According to their president, Brian Brown:
This important decision has largely been ignored in the media because it undercuts the narrative that same-sex marriage is inevitable. But it isn't.
According to Brown the media is always complicit in evil doing. He is correct that the media has generally ignored this matter because a state circuit court judge has made a narrow ruling that has no effect, whatsoever, on what the Supreme Court will ultimately do. A state judge in Dixie does not change the overwhelming probability that national same-sex marriage is inevitable.
It is refreshing to find a judge who is willing to apply the federal constitution as it is and not reinterpret the constitution so as to redefine marriage. … Judge Russell Simmons is exactly correct when he says that there is nothing about the US Supreme Court's Windsor decision that would invalidate the right of Tennessee voters to define marriage as one man and one woman or require the state to recognize a same-sex ceremony performed in another state.
Of course none of this has anything to do with re-interpreting the Constitution. The issues here are simple: Is Baker precedential and; Are these bans permissible in accordance with Windsor and Loving? Brown makes no meaningful argument in support of the two elements. It's just rhetoric.
A number of federal judges in recent months have misinterpreted the US Supreme Court's ruling in the Windsor case, which held that a section of DOMA was unconstitutional because it interfered with the right of New York to redefine marriage. The Court's majority held that regulating marriage has historically been a responsibility of the states and the federal government cannot substitute its judgment for that of the states.
Huh? That is totally incorrect. Section 3 of DOMA is unconstitutional because it interfered with the rights of gay couples to enjoy equal protection and due process. Again, NOM misstates the majority decision in DOMA which clearly indicates that states cannot interfere with the constitutional rights of citizens.  More rhetoric without a substantive (and accurate) argument.

I guess that, were I Brian Brown, I would be making a very big deal out of virtually nothing too. Imagine the hullabaloo if we lose in the 6th Circuit Court of Appeals which is a possibility. Ironically, an appellate loss helps to insure that this matter gets to the Supreme Court sooner to resolve the differing opinions. Meanwhile Brown will do what Brown does which is to beg for contributions. At this point there is nothing that Brown and NOM can do. They are just spectators leading up to a Supreme Court decision. NOM is powerless to affect the outcome either way. They, and the Catholic Church, are no longer in the loop.

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