Supreme Court marriage cases live in Roe's shadow

  • Article by: ADAM LIPTAK , New York Times
  • Updated: March 23, 2013 - 9:16 PM

Roe vs. Wade ruling’s aftermath could steer the high court’s approach to same-sex unions.

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kd5757Mar. 23, 1310:00 PM

Justice delayed is justice denied. There are no legitimate, scientifically-credible reasons to prohibit same-sex marriage and, since we are not a theocracy, religious reasons either for or against same-sex marriage are irrelevant. Once same-sex marriage is legal even the most stalwart opponents will realize that nothing has changed in their lives. Hopefully the Supreme Court will resolve this issue in one fell swoop and then we can focus on real problems that threaten our existence.

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orpheus90Mar. 24, 1312:57 AM

The "Roe analogy" is problematic on a number of counts, though I wouldn't put it past the conservatives on the court to duck and hand down a ruling that punts on the matter of SSM. That said, consider another parallel, Plessy v. Ferguson, in which the court dragged its feet on the question of race and equal protection, leaving the country mired in the racial degradation of Jim Crow and segregation for the first half of the 20th century. Brown v. Board of Education, the Court's '54 ruling, reversed Plessy and attempted to disassemble the increasingly intolerable state-sanctioned enterprise of segregation that became entrenched in the wake of Plessy throughout the south. Needless to say, the white southern public's graphically violent reaction to the Brown decision is still heavily etched in the nation's conscience. So, could one argue that the southern public's rancor, sparked by Brown, should be cause for the Court to tread more lightly, not be so hasty? Or perhaps not act at all, as Rand Paul recently claimed? This seems wrong for any number of reasons, but more important, it ignores the court's failure in Plessy half a century earlier which engendered the cultural/legal enfranchisement of segregation and, needless to say, built the very foundation for backlash unleashed some 50 years later with the court's anything-but-hasty Brown ruling. If the court punts on same sex marriage, one can anticipate, in the wake of a split-level conception of marriage rights, that while more progressive states will continue to acknowledge the right of same sex couples to marry, states that refuse to acknowledge such a right will defensively fortify that refusal with further discriminatory laws targeting same sex couples and their families. It will be left to some future court to undo the intolerable damage that results only because this current court, wishing to avoid potential rancor, is willing to indulge the discriminatory animus against gay people that regionally persists in some areas of the country. Given the current composition of the court, I expect it to pull a "Plessy."

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herro002Mar. 24, 13 6:44 AM

Re ginsburg's comments on Roe v wade: I believe at the time botched abortion was the number one cause of death for women of child bearing age. If accurate, that seems more like an emergency than too far ,too fast.

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athe0007Mar. 24, 13 8:19 AM

The Court's duty is to uphold rights guaranteed in the Constitution. As someone else mentioned, there is no reason other than religion not to give equal protection under the law to all couples. The argument that Roe had too much cultural influence is irrelevant, the same argument could be made about segregation and Brown. When there is pervasive injustice the Court must act decisively. Public opinion does not trump individual rights.

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ericgus55Mar. 24, 13 8:56 AM

The problem with leaving same-sex marriage in the hands of the states, though, is that the Federal government presides over the agencies where the tangible (monetary) impact is felt (IRS, Social Security, federal employee/military benefits, etc.). At some point, in the interest of fundamental fairness and equality, there needs to be a consistent, nationwide standard for what does and does not constitute a legal, civil marriage so that all couples in all states receive "equal protection of the law." However one feels about same-sex marriage, we should all want a consistent system of law.

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ericgus55Mar. 24, 13 9:03 AM

The Brown v Board of Education ("'separate but equal' is inherently in-equal") case could cause a big legal problem with the "give all the same rights but call it something else" solutions that I often hear proposed. Having two separate, legal definitions for marriage/domestic partnership/civil union/etc. based on the relative sexes of the two participants doesn't seem like a feasible long-term solution, because they're never really be equal.

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MichJoe500Mar. 24, 13 9:13 AM

And to be fair, we ought to consider how the analogy applies to another minority, as well. The article states: "...wrote Linda Greenhouse, a former New York Times reporter who now teaches at Yale Law School, and Reva Siegel, a law professor there. 'Before Roe, despite broad popular support, liberalization of abortion law had all but come to a halt in the face of concerted opposition by a Catholic-led minority. It was, in other words, decidedly not the case that abortion reform was on an inevitable march forward if only the Supreme Court had stayed its hand.'” One can read from this quote a thinly-veiled disgust with a minority (i.e. Catholics) because they happened to disagree with abortion. Further, the way around this pesky minority of citizens who would also participate completely within their Constitutional rights to declare their view of abortion is to simply railroad them. With a history of not permitting Catholics to hold public office, the entire nativist movement of the 1800's was purposed to discriminate against Catholics, which even founded a political party (the Know-Nothings) and had former President Millard Filmore running again for president with this party, and through the present day where national health care laws are slow to be revised to respect religious groups, and then only partially despite ardent protests by Catholics. This outcry should well have been foreseen (is the railroading strategy presently being enacted?). If we're going to be fair, we need also to consider how changing marriage laws might lead to a [further] legal legacy of discrimination against minority Catholics who insist that only traditional marriage can be legal just as we would fear that not permitting same-sex marriage could lead to future legislation discriminating against sexual minorities.

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jonotisMar. 24, 13 9:36 AM

The "Roe analogy" is indeed misdirected, except if you consider that the analogy is seen through a lens of Church-over-State sentiment. The Roe/Wade decision was about women's individual rights specifically. Same-sex marriage gets into the more core and perhaps broader issue of Constitutional equality for all. The 1967 anti-miscegenation ruling of the Supreme Court is I think a much better corollary to call upon. Making multi-racial marriage legal throughout the country was also a freedom and equality issue which confronted the bias of the minority of hold-out states who hadn't recognized the US Constitutions' tenets in their state legislatures. Are we not approaching a similar situation to 1967 where the trend in state recognitions and general public opinion reach toward a level of majority consensus?

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kd5757Mar. 24, 1310:16 AM

"If we're going to be fair, we need also to consider how changing marriage laws might lead to a [further] legal legacy of discrimination against minority Catholics who insist that only traditional marriage can be legal..." >>>>>>>>> So if my church teaches that certain ethnic groups are not fully functioning human beings, am I being discriminated against because our government grants them the same rights that I have.

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jbrillMar. 24, 1310:45 AM

Can anyone tell me how controversial Loving Vs Virginia is these days? That was a supreme court decision that actually had something to do with marriage. It invalidated state laws in several states that were already in the process of being repealed gradually.

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