Other AGs for same sex marriage

Wouldn’t it be nice to have someone like one of these 15 Attorneys General representing Texas?


A majority of the states that have legalized same-sex marriage are throwing their support behind two couples fighting Texas’ ban, arguing their own experiences show only positive effects from expanding the right to gays and lesbians.

[Last] Monday, the attorneys general of 15 states and the District of Columbia filed a “friend of the court,” or amicus, brief supporting the couples’ case pending before the 5th U.S. Circuit Court of Appeals. Writing for the group, counsel for Massachusetts Attorney General Martha Coakley asserts that denying lesbians and gays the right to marry could have harmful effects.

“The continued exclusion of same-sex couples (many of them parents) from the institution of marriage actually serves to harm adults, children and the broader community,” wrote Boston-based attorney Jonathan B. Miller. “This is a case where the exclusion of same-sex couples … irrationally undermines important governmental interests.”

Miller goes on to argue that marriage – whether between a man and a woman or same-sex partners – preserves public order, promotes stable family bonds and ensures economic security.

More family units mean more opportunities for adoption, while expanding marriage rights also benefits the physical and psychological health and economic prosperity of same-sex partners, he wrote.

Drawing from their own experiences, the brief says these 15 states and D.C. “have seen only benefits from marriage equality” and calls Texas’ continued ban “alarmism that is unfounded.”

Our own Attorney General, who will no doubt claim he’s under attack by these amicus briefs and thus the real victim here, is of course opposed to marriage equality and is kind of a jerk about it. It doesn’t have to be like this, and in fact we can change course next month. Democrat Sam Houston is on record saying he would not pursue further appeals of the earlier federal court decision that threw out Texas’ ban against same sex marriage. He said as much in the interview I did with him. Go listen to it, as Lone Star Q did, and hear for yourself.

And with the action by the Supreme Court letting rulings striking down laws against same sex marriage stand in three other circuits, the Fifth Circuit appeal takes on greater significance.

By refusing to hear same-sex marriage appeals from five states that had banned such unions, the U.S. Supreme Court may have set the stage for using Texas’ prohibition as the basis of a future landmark ruling.


“If the 5th Circuit decides to uphold the ban, there’s a very strong possibility that the Texas case could be a landmark (Supreme Court ruling) two years from now,” said Cary Franklin, a professor at the University of Texas School of Law in Austin.

An upholding of Texas’ ban of same-sex marriage would create disagreement among the federal circuit courts, which have so far been in unison of their support of overturning such bans. In such a circumstance, the Supreme Court might be more likely to step in.

Monday’s action “signals, I hope, the direction the court is going,” said Rebecca Robertson, legal and policy director of the ACLU of Texas. “It’s hard not to look at this optimistically.”

The state’s reply brief to the plaintiffs is due October 10. We are still waiting for the Fifth Circuit to set a date for oral arguments, but the good news is that they have now agreed to fast track the case. One hopes this time Abbott’s office can turn in its homework on time and not drag its feet. It’s generally wise to expect the worst from the Fifth Circuit, but this is one of those times where it’s reasonable to hope for something better. I look forward to this getting finished.

Of interest will be how the Fifth Circuit interprets the non-action by SCOTUS. Lyle Denniston prognosticates:

Third, four other circuits — the Fifth, Sixth, Ninth, and Eleventh — are currently considering the constitutionality of same-sex marriages. Of those, the Ninth Circuit — which had earlier struck down California’s famous “Proposition 8″ ban and uses a very rigorous test of laws against gay equality — is considered most likely to strike down state bans. If that happens, it would add five more states to the marriages-allowed column (Alaska, Arizona, Idaho, Montana, and Nevada), which would bring the national total to thirty-five.

The reaction in those four circuits could depend upon how they interpret what the Supreme Court did on Monday.

If the Court is not likely to uphold any state ban, either on same-sex marriage in the first place or recognition of existing such marriage, lower courts may see good reason to fall in line. The Court’s actions, however, do not set any precedent, so lower courts are technically free to go ahead and decide as they otherwise would.

If they interpret the denials of review as providing no guidance whatsoever, then they would feel free to proceed without reading anything into what the Court has in mind.

It is very hard, however, to interpret the Justices’ actions as having no meaning. Here are the reasons why the denial orders were such a surprise:

Go read the rest. As if on cue, the Ninth Circuit affirmed the lower court ruling that struck down bans in Idaho and Nevada. Emily Badger thinks that the Supremes have basically already had their say in the Windsor decision, which has been the guidepost for the lower courts so far, but Dahlia Lithwick strongly believes SCOTUS still needs to explicitly call same sex marriage bans discrimination before it can say it has concluded its business. Either the Fifth Circuit or the Sixth Circuit might go their own way and uphold the bans, which would force SCOTUS to act sooner rather than later. And as Philip Bump reminds us, South Carolina and Alabama both lad laws banning miscegenation on their books until 1998 and 2000, over 30 years after the Loving decision rendered them unenforceable. So yeah, we are not done here yet. Lord knows, the forces against progress aren’t done; as Ed Kilgore notes, they’re already retuning their dog whistles. There’s a lot more of this story to be told. Hair Balls has more.

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