It’s hard to avoid the word play that GLAD is glad. Today’s Left Ahead show with Gary Buseck was pretty jolly. He is the legal director and interim executive director of Gay & Lesbian Advocates & Defenders. Looking at the huge, sudden jump from 19 states with marriage equality to 30 or 35, he’d need a lot of be down.
When the SCOTUS declined to hear multiple cases from federal courts asking to uphold their same-sex-marriage bans, in effect the nine ruled that those bans were unconstitutional, that marriages should proceed. Yes, here and there an attorney general or governor makes a display of pretending to appeal or fight, but it’s kicking against the goads as the ancient Greek used to say.
GLAD was directly involved in the recent Utah case and in numerous others to expand or defend equality elsewhere. Buseck admits to being surprised that the Supreme Court refused to hear any of the cases and that the non-action was without dissent.
Click the player below to hear the 38-minute show.
We spoke the unresolved federal districts, the 5th, 6th, 7th, 8th and 11th. While those who have weighed in have all upheld federal court rulings against bans, if one district has a different finding (in this case overturning decisions on the unconstitutionality of such state laws or amendments), that would trigger a SCOTUS case to settle the difference. Buseck was unsure if any of those district courts would swim against this judicial tide.
Instead, he spoke at length at how the SCOTUS itself was loath to break ground on huge issues. Rather, they tend to follow the nation and its legal trends. He noted that the high judiciary has neither the power of the purse nor that of an army. So, it goes with persuasion and reliance on settled case law. With same-sex marriage, the preponderance of law is now solidly on the side of equality.
However, he did note the wild card of SCOTUS composition. With a five-to-four majority favoring equality, the potential retirement of 1, 2 or 3 of those justices, coupled with a GOP-lead government could make a dramatic difference in current trends. Of course, he’d like the SCOTUS to settle this before that is an issue or possibility.
Listen is as we warily speak to the certainty of continued opposition and obstruction in the face of inevitability of nationwide marriage equality. He referenced recent mention (by Prop 8 leader Frank Schubert at the Value Voters Summit) of looking for a partial-birth-abortion moment. The hope of the anti-gay sorts would be that they could identify an analog to turn the public against the obviously positive same-sex marriages.
Buseck agreed that even if all 50 states and the District have marriage equality, with or without a SCOTUS decision, some forces will not give up. They have not with a woman’s right to choose, contraception, gay rights and much more. However, as we approach 35 or maybe soon 39 equality states, reversing the gains becomes very difficult. Moreover, where there is wide comity and states respect marriages conducted elsewhere, such reversal becomes almost impossible.
Buseck did note in passing that a U.S. Constitutional Amendment could do that. However, with a requirement that three-fourths of the states approve it, and the vast majority of states permitting SSM, that is virtually impossible.
More likely, however, he sees increasing efforts at carve-out requests, based on religious, conscience grounds. He noted that the courts have to date not tested the sincerity of such beliefs where they granted exemptions. Those can be spectacular like Hobby Lobby or down to service businesses that are not related to religious institutions. Buseck sees how those requesting exemptions are easily go too far and encroach on settled anti-discrimination and public accommodation law. Yet, he expects many such requests.
We spoke of states’ rights. He traced the history of how domestic relations, including marriage was traditionally left to sates, following the ideas in the 10th Amendment, which reserves powers not specifically granted the federal government to the states. Yet in numerous instances, where state powers run afoul of the national constitution, states must bow. This happened recently in the Windsor case overturning the heart of the Defense of Marriage Act.
Listen as Buseck muses of what the most recent inaction of the SCOTUS might mean. Many thought Justice Ruth Bader Ginsburg was “ready to roll’ on marriage equality. Yet when the high court did not take any cases, it appeared that as there is no disagreement in the circuits, there is no rush. Buseck thought the real message may be a signal to the circuits to think long and hard before upholding any of the cases asking for support for marriage bans.
Buseck said that these cases really aren’t all that hard. He said it was difficult for the MA Supreme Judicial Court 11 years ago. Thus, they fretted and eventually ruled for equality, but gave the legislature six months to do something, anything to take the cup from their lips. However, now the issues are fairy settled. Do you want to treat some citizens as a separate class? The answer so far, circuit to circuit has been, no.