Category Archives: U.S. Supreme Court

Sodomy laws remain on books in 17 states, including Md. and Va.

Some gay rights attorneys, including Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision. (Washington Blade photo by Michael Key)

Laws that make it a crime for consenting adults to engage in sodomy remain on the books in 17 states and continue to be enforced in several of those states 10 years after the U.S. Supreme Court declared such laws unconstitutional.

Last week, the Montana Legislature gave final approval of a bill to repeal that state’s sodomy law. (A spokesperson for the state’s Democratic governor, Steve Bullock, said Bullock was scheduled to sign the bill on Thursday, which would lower the number of states with sodomy laws from 18 to 17.)

According to LGBT activists and gay rights attorneys, most of the cases in which police and prosecutors enforce sodomy or “crime against nature” statutes involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex in parks or other public places.

But the author of a comprehensive report on the continued enforcement of state sodomy laws released in 2011 by the national LGBT advocacy group Equality Matters said many of the cases involve arrests of men who merely seek to invite another willing male partner to their home for a sexual encounter where prostitution is not involved.

Equality Matters researcher Carlos Maza, author of the report “State Sodomy Laws Continue to Target LGBT Americans,” told the Blade that although sodomy laws apply to straights as well as LGBT people in all but four of the states that have them, LGBT people are targeted far more often than straights.

“LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult,” the report quotes Michigan gay rights attorney Rudy Serra as saying in the Michigan publication Pride Source.

“Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan,” the report quotes Serra as saying. “LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.”

Serra told the Blade in an interview that someone convicted under Michigan’s sodomy law, called the Abominable and Detestable Crime Against Nature statute, and a separate “Gross Indecency” law, also must register with the state as sex offenders.

He said despite the fact that the Lawrence v. Texas decision renders these laws unconstitutional, the Michigan State Bar, which every lawyer is required to join, has retained written instructions about how juries should deliberate over cases in which a person is charged and brought to trial under the sodomy and Gross Indecency laws.

Gary Buseck, legal director of the New England-based litigation group Gay & Lesbian Advocates & Defenders, said he is not aware of any cases in which the Massachusetts sodomy law has been enforced against people for private, consensual, non-commercial sex since the 2003 Lawrence decision.

But he said the Massachusetts law continues to be used, although rarely, by police against gays in cases of “public” sex.

“We have always understood that in straight ‘lovers’ lanes,’ the police traditionally just shoo couples away and that’s that,” he told the Blade. “With gay men there has traditionally been the ebb and flow of sting efforts or entrapment efforts or enhanced enforcement efforts at what become identified as gay cruising areas.”

Buseck added, “Occasionally, men will still be charged with a felony sodomy [in Massachusetts]. But we have not been aware in recent years of any district attorneys who will go forward with such a case.”

In at least one case in North Carolina in 2008, police arrested two gay men under that state’s sodomy statute for allegedly engaging in consenting sex in the privacy of one of their homes. The case outraged gay activists in the state, who noted it was similar to the Lawrence v. Texas case in which the Supreme Court supposedly overturned state sodomy laws.

A prosecutor eventually dropped the charges against the men after determining that the arrest by officers of the Raleigh Police Department violated the Lawrence v. Texas ruling.

The Raleigh News and Observer and other news media outlets reported that police got involved in the case after the men became involved in an incident of domestic violence and one of them called police.

In the course of a police investigation, one of the men said the other sexually assaulted him, according to media accounts. But a police official told media outlets the incident appeared to be “a case of a consensual act that may have gotten out of hand.” Instead of charging one of the men with sexual assault, police charged both men with violating the sodomy statute.

The News and Observer reported at the time that the man who claimed he was sexually assaulted said he was grateful that the sodomy charge was dropped but said he had been humiliated over being accused of a crime listed as a Class 1 felony — sodomy — punishable by up to two years in prison.

“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” Maza told the Blade. “And the only real solution is to have those laws taken off the books.”

Added Maza, “Unfortunately a lot of people don’t have the motivation to get that done when things like marriage and employment discrimination are being discussed in state legislatures.”

Maza and gay rights attorneys familiar with Maryland said they were not aware of Maryland’s sodomy law being enforced since the late 1990s. [See separate Blade story on Maryland’s sodomy law.]

The Virginia sodomy law, which also remains on the books, has been enforced against gays and straights charged with offenses related to public sex or sex with minors, attorneys familiar with the Virginia Crimes Against Nature law have said. A federal appeals court ruled last month that the Virginia statute was “facially” or completely unconstitutional and could no longer be enforced under any circumstances.

The Equality Matters report notes, however, that police and prosecutors in some states, including Michigan and Texas, have continued to enforce sodomy laws despite the fact that state courts have joined the U.S. Supreme Court in invalidating those laws.

“Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are viewed as criminals in the eyes of the law,” Maza states in the Equality Matters report. “This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth,” the report says.

Lawrence loophole?

Some gay rights attorneys, including Washington, D.C. attorney Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision.

According to these attorneys, certain prosecutors and judges are claiming a passage in the Lawrence decision penned by Justice Anthony Kennedy, who wrote the majority opinion in the case, provides a broad loophole that gives them authority to continue enforcing their state sodomy laws in cases involving public sex, sex with minors, or prostitution-related sex.

The passage in question states, “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”

Virginia Attorney General Ken Cuccinelli, who defended Virginia’s sodomy law against a court challenge this year, has cited the so-called loophole in his arguments urging the Fourth Circuit U.S. Court of Appeals in Richmond to uphold the statute. The court instead declared the law unconstitutional based on the Lawrence decision and refused Cuccinelli’s request that the full 15-judge court reconsider the decision handed down by a three-judge panel.

Cuccinelli has yet to disclose whether he plans to ask the U.S. Supreme Court to consider the case as a final appeal.

Gay rights attorneys say that Kennedy’s passage appearing to limit the scope of the Lawrence decision to non-commercial, consenting sex among adults in private appears reasonable on its face. Smith, for example, told the Blade he and the other attorneys who helped him prepare the Lawrence case before the high court did not call for a ruling that went beyond invalidating state sodomy laws for private, consenting, non-commercial sex between adults.

But gay rights attorneys say they do not think Justice Kennedy and the justices who ruled with him intended that gays be singled out for harsher treatment than straights for identical infractions through the enforcement of state sodomy laws.

In the Equality Matters report, Maza points out that prosecutors in some states, especially Louisiana, have used sodomy laws to push for harsher penalties against LGBT suspects using sodomy laws than they would for heterosexual suspects accused of engaging in the exact same behavior, such as prostitution or public sex.

In Louisiana, the report says, people accused of engaging in prostitution could be charged either under the state’s anti-prostitution law or under the solicitation provision of the Louisiana “Crime Against Nature” law, which criminalizes oral and anal sex.

The Crime Against Nature statute carries a longer prison term than the prostitution law, the report says, and unlike the prostitution statute, people convicted under the Crime Against Nature law must register as sex offenders, even if the sex is between consenting adults.

Activists say some of Louisiana’s transgender women and young gay men who have been rejected by their families for being gay or transgender engage in prostitution as a means of survival. Activists say members of these two groups have been among those most frequently charged under the Crime Against Nature law in Louisiana.

The Center for Constitutional Rights, which has provided legal assistance to people charged under Louisiana’s crime against nature law, has criticized law enforcement officials for seeking to enforce the law up until last year, when a state court ruled it could no longer be enforced based on the Lawrence decision.

“[T]he only reason our clients are registered sex offenders is that they were convicted under the provisions of a 200-year-old statute that condemns non-procreative sex acts and sex acts traditionally associated with homosexuality, solely on grounds of moral disapproval,” the group said in a statement.

The Equality Matters report says one of the most dramatic examples of how a state sodomy law can inflict a harsher penalty on LGBT people surfaced in Kansas in 2004. In a case known as State v. Limon, a Kansas state appellate court cited the so-called Lawrence loophole or “exemption” for minors in a ruling upholding a trial court conviction of an 18-year-old male charged with engaging in consensual oral sex with a 14-year-old boy. Both had been living in the same residential school facility for mentally challenged youth.

If the 14-year-old had been a girl rather than a boy, the 18-year-old would have been charged under a Kansas “Romeo & Juliet” law. That law calls for a young adult charged with having sex with a minor whose age is within four years of the young adult to receive a far more lenient sentence under the state’s statutory rape law if the sex is consensual. The 18-year-old, who was charged and convicted under the Kansas criminal sodomy law, was sentenced to 17 years in prison.

His conviction was later overturned by the U.S. Supreme Court on grounds that the Kansas sodomy law was unconstitutional based on the Lawrence decision.

“The reality is that, in many states, enforcement occurs sporadically, typically at the discretion of particular police officers,” said Maza in discussing the rationale for enforcing sodomy laws.

“Even though the laws are clearly unconstitutional, their existence in the legal code gives officers the cover they need to arrest and prosecute gay people,” he said. “Sometimes officers simply choose to ignore Lawrence altogether in an attempt to enforce state sodomy laws as if the decision never occurred.”

Although the majority of sodomy cases are eventually dismissed, Maza said, the fact that people are still charged under the laws, and few people until recently were aware of this taking place, demonstrates that LGBT organizations should take a far more aggressive approach in addressing the issue.

“Only fully repealing these measures ensures that LGBT Americans will be protected from arbitrary and discriminatory legal treatment,” Maza said.

Following is a list of the states that had sodomy laws on the books as of early this week.

Montana’s governor was expected to sign a bill this week to repeal that state’s sodomy law, making Montana the first state to repeal its sodomy statute through legislation in many years.

An asterisk indicates the state sodomy law only applies to gay sex.

Alabama
Florida
Georgia
Idaho
Kansas*
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Montana*
North Carolina
Oklahoma*
South Carolina
Texas*
Utah
Virginia

Rights are not political

By DR. KATHERINE O’HANLAN

The amicus brief from the Gay and Lesbian Medical Association that I contributed to relates to the Supreme Court that the last 30 years of research provides solid evidence that sexual orientation and gender identity are biologically conferred during the first 12 weeks of pregnancy, and are as innate as handedness, height or skin color.

During that critical first trimester, the fetus is exposed to proteins, sex hormones and enzymes that result in numerous traits that are different for men and women. These sexually dimorphic traits include anatomy and physiology, certain brain structures, some physical skills and some cognitive skills. Among these sexually dimorphic traits are sexual orientation (most prefer the opposite sex) and gender identity (most men and women identify with the gender of their genital anatomy).

However, nature never confers traits in a perfectly dichotomous fashion, and never is precisely black or white, but rather expresses as infinite shades of grey across a broad spectrum of grays, some very dark, some not so dark, some light, some very light. Likewise, almost no one is perfectly heterosexual or homosexual, purely male or female, but some blend of features that make them unique. More than 50 published research studies in the National Library of Medicine provide evidence that transgender people and homosexual men and women are born with traits that fall in the mid portion, or even closer to the opposite-gender end of that spectrum. They are born with the cognitive and physiologic skills, bone anatomy and brain circuitry that are slightly or substantially more like the skills, features, orientation and identity of the opposite sex.

Observations of more than 450 species of animals confirm that fleas, birds, reptiles and primates (that is us) demonstrate bisexual or homosexual behavior including recreational sex to orgasm in the presence of the opposite gender, and lifelong pairings. Experimental evidence long ago demonstrated that injecting hormones into pregnant rodents and guinea pigs could reverse their sexual partner preferences. While such experiments would never be performed on humans, observations of multiple human medical conditions confirm the link between early development and sexually dimorphic traits including orientation and identity.

For example, when a female baby is born with a congenital abnormality of the adrenal gland, a missing enzyme causes a buildup of male-like hormones (androgens) to accumulate in the baby’s blood. Most female infants with this condition will have boy-like bone structures and play patterns, up to half of the girls will later identify as lesbian, and a few as transgender males, especially if they have the extreme forms of adrenogenital syndrome. Furthermore, research shows that girls who had a boy co-twin in their mothers’ wombs have more male-like bone structure and play patterns, and are more likely to identify as lesbian later in life. This is because the baby girl’s brain received some of her co-twin’s male hormones through their shared amniotic fluid membrane.

For baby boys, any subtle decrease in the usual level of essential male chemicals during the first part of pregnancy can increase his chance of becoming a gay male or transsexual. Seventeen published research reports have concluded that boys with many older brothers are more likely to be gay than boys with fewer older brothers. Why? Because every pregnant mother receives proteins from her baby boy’s blood that her body perceives as foreign, causing her to develop blocking antibodies to neutralize and remove them. With each successive boy pregnancy, the mother makes more blocking antibodies, progressively reducing the level of essential male chemical exposure to each subsequent male child.

The enormous multidisciplinary body of scientific evidence confirming the biologic basis of sexual orientation and gender identity is the substance of our brief to the Supreme Court, and should also inform our national debate and policy decisions. While, admittedly, the data is drab and overly scientific, the evidence is solid. Like skin or hair color, sexual orientation and gender identity are unchangeable, innocent, historically misunderstood and deserving of accommodation in our public laws. Our Supreme Court justices need this scientific information.

Dr. Katherine O’Hanlan is a gynecologic oncologist and surgeon who is past president of the Gay and Lesbian Medical Association. She is based in Portola Valley, Calif.

Who would have thunk it?

For those who have fought for LGBT rights for decades, it’s mindboggling that as of April 5, a majority of the United States Senate now supports same-sex marriage. All but three Democrats along with two Republicans, Sens. Rob Portman (R-Ohio) and Mark Kirk (R-Ill.), have joined the list of supporters with more than seven issuing statements of support in the past week alone.

The time has come for the Democratic hold-outs — Sens. Mark Pryor (D-Ark.), Joe Manchin (D-W.Va.) and Mary Landrieu (D-La.) — to get on the right side of history. They alone make it difficult for the LGBT community to donate to the Democratic National Committee and Democratic Senatorial Campaign Committee (DSCC) because there is absolutely no reason to see our money flow to those three candidates who don’t support our full civil and human rights.

While thanking the 54 supporters, we must at the same time ask them to not only talk the talk but to walk the walk. There should be at least 54 senators co-sponsoring the Employment Non Discrimination Act. If they agree that we should be able to marry, then surely they believe we should be able to work. We should ask them to sign a letter asking President Obama to issue the executive order banning discrimination against the LGBT community by federal contractors. We need them to stand by their beliefs and sign onto the Respect for Marriage Act and say that gay and lesbian marriages like those of heterosexual couples are recognized in other states.

As support for marriage equality spreads, there are posts on Facebook asking what organizations like the National Gay and Lesbian Task Force (NGLTF) and the Human Rights Campaign (HRC) will do if we get all these rights. We need to remind people to look at where society is with regard to securing rights for minorities and women and how important it is to be vigilant. You can win rights but until you change the hearts and minds of all the people, or at least a huge majority of them, we will always be fighting to maintain those rights. Consider some who call themselves our friends, like local D.C. Council candidate Patrick Mara. He still worked for, supported and donated money to candidates who pledged to continue the fight for a constitutional amendment banning same-sex marriage. This is a candidate who said he would appoint justices to the Supreme Court who would likely rule that same-sex marriage wasn’t protected by the constitution and to overturn Roe v. Wade. This is someone who calls himself a friend; we will always have to beware of such “friends.”

We must continue to encourage more members of the LGBT community to run for office across the nation and support them. As Barney Frank said, “If we don’t have more seats at the table we will continue to be on the menu.” We need those like Sen. Tammy Baldwin (D-Wisc.) and candidates like Christine Quinn who will be the first woman and first lesbian mayor of the City of New York to speak out for our rights.

As we await the decisions of the Supreme Court on Prop 8 and DOMA there is much we still need to do. The decisions will likely leave us far from being full and equal participants in the American dream and there will be much left to accomplish to form that more perfect union we all want.

Cuccinelli denied sodomy ruling rehearing

Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

Virginia Attorney General Kenneth Cuccinelli hoped to challenge a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)

The Fourth Circuit U.S. Court of Appeals in Richmond issued an order on Monday denying a petition by Virginia Attorney General Ken Cuccinelli asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.

In an action that surprised some court observers, the order says none of the court’s judges requested a poll among themselves to determine which, if any of them, favored Cuccinelli’s request for an en banc rehearing of the sodomy case by the court’s 15 active judges and one senior judge.

Under court rules, if no judge calls for a poll or vote on the issue, the petition for a rehearing is automatically denied in what, in effect, becomes a unanimous decision.

Among the judges that chose not to approve a rehearing was Judge Albert Diaz, who wrote the dissent in the three-judge panel’s 2-1 ruling declaring Virginia’s “Crimes Against Nature” statute unconstitutional. The statute classifies sodomy between consenting adults, gay or straight, as a crime.

“It’s a pretty resounding rejection,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law. “There really wasn’t any interest in doing this at all by anybody.”

Caroline Gibson, Cuccinelli’s deputy communications director, didn’t respond to a question from the Blade about whether Cuccinelli plans to petition the U.S. Supreme Court to take the case, which would be the last remaining step to challenge the appeals court ruling overturning the sodomy law.

“We would hope that they wouldn’t,” Gastanaga said. “We would hope that they would understand what they need to do is work to get this law off the books. But I wouldn’t be surprised if they filed a petition for cert.”

Gastanaga was referring to the process for taking a case before the Supreme Court through the filing of a petition for a Writ of Certiorari. At least four of the nine justices on the high court must approve certiorari or “cert” in order for the court to accept a case for consideration on the merits.

The March 12 ruling by the three-judge panel of the Fourth Circuit appeals court overturned a lower court decision upholding the conviction of a 47-year-old man charged in 2004 with soliciting a 17-year-old woman to engage in oral sex on grounds that the sodomy statute is unconstitutional. No sexual encounter took place, according to court records.

Cuccinelli’s office argued in its 21-page petition for a rehearing that the Supreme Court’s 2003 Lawrence v. Texas decision overturning state sodomy laws didn’t apply to cases involving minors. However, Fourth Circuit Court of Appeals Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statute “facially” or completely unconstitutional.

“As we stated last week, this case has nothing to do with sexual orientation or private sexual acts between consenting adults,” Gibson told the Blade in an email on Tuesday. “It’s about using current law to protect a 17-year-old girl from a 47-year-old sexual predator. The attorney general is committed to protecting Virginia’s children from predators who attempt to exploit them and rob them of their childhood.”

Gibson said Cuccinelli agreed with the dissenting judge that the defendant in the case wasn’t entitled to relief from the three-judge panel of the fourth circuit appeals court and the full court should have been given an opportunity to decide the matter.

Judge King stated in the majority opinion that other laws could be used to prosecute an adult for engaging in sex with a minor and that the state legislature would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, has said he is considering introducing a bill next year to repeal the Crimes Against Nature law for consenting adults.

3 lessons from last week’s Supreme Court cases

By JON W. DAVIDSON

For a law junkie like me, attending the Supreme Court arguments in the challenges to California’s Proposition 8 and the so-called Defense of Marriage Act, was like having seats on the 50-yard line of the Super Bowl or, to put it in gayer terms, like being in the front row as the curtain rises for one of the biggest Broadway hits of all time – except that it was not just a game or a show. It was history unfolding – a history that could either accelerate our path to full equality or create speed bumps on the road forward. Although we don’t yet know the results, attending the arguments drove home three important points.

First: We’ve come a very long way in a very short period of time. The Prop 8 argument took place exactly 10 years after arguments were heard in Lambda Legal’s Lawrence v. Texas case, which held the country’s remaining state sodomy laws unconstitutional. In 10 short years, we have moved from having 13 states that criminalized our sexual intimacy and none that provided our relationships any form of legal recognition to now having nine states and the District Columbia that allow same-sex couples to marry and nine more that provide same-sex couples virtually all the state law rights and responsibilities of marriage.

Similarly, 10 years ago polls were nearly two-to-one against allowing same-sex couples to marry, while a Washington Post-ABC News poll last month showed that support for letting lesbian and gay couples wed has now reached 58 percent.

Even the justices’ questions revealed our immense progress. For example, conservative Justice Alito posed a hypothetical about an injured gay soldier in a “committed, loving relationship,” acknowledging both the end of the military’s ban on open service and that we do form such relationships.

Second: This particular fight is not yet over. Notwithstanding Time magazine’s recent cover proclaiming “Gay Marriage Already Won,” at least with respect to these lawsuits, the arguments made clear that some justices whose votes are likely to be critical have not fully made up their minds. What happens over the next three months before decisions in these cases are expected could continue to influence their understanding of the issues. We therefore cannot let up in the efforts to pass marriage bills in Illinois, Rhode Island, Minnesota and Delaware or to win a veto override in New Jersey. We must also continue to make the case for the freedom to marry to our friends, families, neighbors and coworkers and in the media.

Beyond that, although I am hopeful that there are the necessary five votes to strike down the provision of DOMA that requires the federal government to ignore legally entered marriages of same-sex couples, it appears that the court is not yet ready to issue a sweeping ruling requiring all states to allow same-sex couples to marry. Whether Supreme Court review of the Prop 8 case is dismissed as “improvidently granted” (reinstating the Ninth Circuit’s ruling) or the appeal is dismissed for lack of standing (keeping in place the trial court’s injunction against Prop 8) or a limited victory is handed down, it looks like the struggle to win the freedom to marry will wage on in many parts of the country for some time to come.

Finally: Even a sweeping victory in these cases will not end our work. While ending bans on same-sex couples marrying has been an important goal for the movement, we need to continue fighting for the full civil rights of all people, married or not, as well as for the rights of transgender people, people living with HIV, LGBT parents and workers, those who are incarcerated or poor and our youth and elders. The good news is that winning the freedom to marry will free up more resources for those ongoing battles. I can’t wait until I’m at the Supreme Court again to see more of them fought.

Jon W. Davidson is legal director of Lambda Legal. Reach him at jdavidson@lambdalegal.org.

How will Supreme Court rule on marriage?

Supreme Court, Clarence Thomas, Sonia Sotomayor, Antonin Scalia, Stephen Breyer, John Roberts, Samuel Alito, Anthony Kennedy, Elena Kagan, Ruth Bader Ginsburg

Justices on the U.S. Supreme Court are expected to issue rulings on the Prop 8 and DOMA cases in June. (Photo public domain)

The nine members of the U.S. Supreme Court are expected to reach a decision by the end of June in two high-profile LGBT rights cases on which they heard oral arguments last week challenging California’s Proposition 8 and the federal Defense of Marriage Act.

The justices could reach any number of decisions on either or both of the cases — upholding the anti-gay measures, dismissing the cases for lack of standing or jurisdiction, striking down Prop 8 and DOMA on grounds they violate the rights of same-sex couples under the U.S. Constitution — or even issuing a national ruling in favor of marriage equality.

Predicting how they might rule is tricky. But several of the justices made statements and asked questions during the oral arguments that offered some hints. Perhaps more significantly, many of them have a record of ruling in gay rights cases that might indicate their leanings on marriage. The Washington Blade has compiled profiles of the justices to assess how they might rule in the two marriage cases before them.

In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws.

The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Law’s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.

John Roberts, Supreme Court, gay news, Washington Blade

Chief Justice John Roberts (Photo public domain)

1. Chief Justice John Roberts

The chief justice of the Supreme Court seemed skeptical during oral arguments that Prop 8 and DOMA should be struck down as unconstitutional. He also seemed dismissive of the notion that LGBT people lack political power.

In an exchange with attorney Robbie Kaplan, Chief Justice John Roberts disputed that gay people lack political power — a characteristic that the court has considered in weighing whether a group should be considered a suspect class.

“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.

The chief justice was likely referring to the trend of U.S. senators announcing their support for marriage equality, which just this week added Sens. Bob Casey (D-Pa.), Tom Carper (D-Del.) and Mark Kirk (R-Ill.). When Kaplan pointed out that no group has been subject to referenda in recent years like gay people, Roberts seemed unmoved.

“You just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side,” Roberts said.

Roberts, who was appointed by President George W. Bush, hasn’t ruled on many gay rights cases during his time on the bench. Still, Roberts ruled as part of the dissent that deemed exclusion of LGBT students was acceptable in the Christian Legal Society case.

On the other hand, Roberts in 1996 helped gay rights activists as part of his law firm’s pro bono work in preparation for the Romer case. He also has a lesbian cousin, Jean Podrasky, who attended arguments on Prop 8.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, pointed to another comment Roberts made indicating a parent forcing a child to make friends with another child changes the definition of friendship.

“It suggested that he might be less open to recognizing marriage rights for same-sex couples than the Olson-Boies team had anticipated,” Goldberg said.

Antonin Scalia, Supreme Court, gay news, Washington Blade

Associate Justice Antonin Scalia (Photo public domain)

2. Associate Justice Antonin Scalia

Associate Justice Antonin Scalia, viewed by many as the most anti-gay of the justices, mused that being raised by gay parents may not be good for a child — an argument made by many anti-gay groups.

“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” Scalia said. “Some states do not permit adoption by same-sex couples for that reason.”

Those words are consistent with anti-gay views that Scalia has expressed in the past. Most notably, speaking at Princeton in December, Scalia compared bans on sodomy to laws against murder, saying, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Since his confirmation to the court, Scalia has not only made anti-gay rulings, but has taken the lead on the opinions. The Reagan-appointed justice wrote the dissenting opinions in the Romer and Lawrence cases and joined with other dissenting justices in ruling for LGBT exclusion in the Christian Legal Society case.

Doug NeJaime, who’s gay and a professor at Loyola Law School, said Scalia is likely to rule to uphold Prop 8 and the Defense of Marriage Act.

“Justice Scalia has made clear in earlier opinions … that legislation can be justified merely by moral disapproval of homosexuality, even though a majority of the court has rejected that position,” NeJaime said. “Moreover, under his theory of constitutional interpretation, he does not believe that lesbians and gay men have a constitutional basis for their claims in these cases.”

Anthony Kennedy, Supreme Court, gay news, Washington Blade

Associate Justice Anthony Kennedy (Photo public domain)

3. Associate Justice Anthony Kennedy

The justice who’s being most closely watched because of his reputation for being a swing vote — and his previous rulings in favor of gay rights — conveyed mixed sentiments during the arguments.

Associate Justice Anthony Kennedy contemplated the effect that overturning or sustaining Prop 8 would have on children based on the newness of same-sex marriage.

“We have five years of information to weigh against 2,000 years of history or more,” Kennedy said. “On the other hand, there is … what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”

A Reagan appointee, Kennedy authored the majority opinions in the Romer and Lawrence cases that struck down anti-gay measures in those lawsuits. In the Christian Legal Society case, Kennedy also ruled in favor of requiring student groups to be open to all students regardless of LGBT status.

That’s what makes Kennedy’s comment questioning the Ninth Circuit ruling against Prop 8, which was largely based on his opinion in Romer, particularly noteworthy.

“The rationale of the Ninth Circuit was much more narrow,” Kennedy said. “It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.”

Nan Hunter, a lesbian law professor at Georgetown University, said the “single most powerful vibe” she received from Kennedy during arguments was his ambivalence.

“My best guess is that in the Perry case, he will rule in some way that avoids discussion of Prop 8′s constitutionality and that in the Windsor case, he will conclude that DOMA is unconstitutional, but his opinion may invoke federalism as much as it does the Equal Protection Clause,” Hunter said.

Clarence Thomas, Supreme Court, gay news, Washington Blade

Associate Justice Clarence Thomas (Photo public domain)

4. Associate Justice Clarence Thomas

In accordance with his custom, Associate Justice Clarence Thomas remained silent for the duration of oral arguments in the marriage cases.

Thomas is known for not asking questions. In January, after seven years of silence, the George H.W. Bush-appointed justice made news when he broke his tradition and cracked a joke about the competency of an attorney during a case unrelated to marriage.

But Thomas has a history of taking the anti-gay side. He ruled in the dissent in the Romer and Lawrence cases and ruled for LGBT exclusion in the Christian Legal Society case.

Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, said oral arguments don’t offer any information on how Thomas might rule, but noted the justice’s history of anti-gay opinions.

“He is quite conservative and historically has voted with the other conservative justices in cases involving LGBT equality,” Stoll said.

5. Associate Justice Ruth Bader Ginsburg

Ruth Bader Ginsburg, Supreme Court, gay news, Washington Blade

Associate Justice Ruth Bader Ginsburg (Photo public domain)

One justice who has a history of ruling in favor of gay rights indicated a disdain for DOMA during oral arguments.

Associate Justice Ruth Bader Ginsburg said the 1996 law creates two different kinds of unions for same-sex and opposite-sex couples: “the full marriage, and then this sort of skim milk marriage.”

While questioning attorney Paul Clement, Ginsburg more distinctly articulated the problems for gay couples under DOMA by enumerating benefits denied to them under the law.

“The problem is if we are totally for the states’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people — if that set of attributes, one might well ask, what kind of marriage is this?” Ginsburg said.

Ginsburg also has a history suggesting she’d be willing to rule against Prop 8 and DOMA. The Clinton-appointed justice ruled in favor of LGBT advocates in the Romer, Lawrence and Christian Legal Society cases. Prior to her confirmation as a Supreme Court justice, Ginsburg was a women’s rights advocate and co-founder of the women’s rights project at the American Civil Liberties Union.

David Gans, civil rights director for the progressive Constitutional Accountability Center, said he considers Ginsburg a likely vote to strike down DOMA and Prop 8 based on her history of rulings and comments made in court.

“I think her comments tended to be across the board very skeptical of the justifications offered, and, of course, her record, both as an advocate and justice is to honor the constitutional guarantee of equal protection applies to all persons,” Gans said.

Stephen Breyer, Supreme Court, gay news, Washington Blade

Associate Justice Stephen Breyer (Photo public domain)

6. Associate Justice Stephen Breyer

The other Clinton appointee on the bench also made comments during the Prop 8 arguments suggesting he might rule in favor of marriage rights for gay couples.

Associate Justice Stephen Breyer was dismissive of Cooper’s assertion that marriage is for procreation, observing California allows straight couples who cannot have children to marry.

“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” Breyer said. “I mean, there are lots of people who get married who can’t have children.”

And Breyer’s earlier rulings suggest he would be amenable to striking down Prop 8 and DOMA. Breyer joined Kennedy and other justices in the pro-gay rulings for Romer and Lawrence and sided with LGBT inclusion in the Christian Legal Society Case.

Gans said Breyer’s comments during the Prop 8 arguments indicate his rulings on the anti-gay measures will likely be consistent with his earlier decisions.

“Justice Breyer’s questions during oral argument suggested that he would find that discriminatory marriage laws violate the constitutional guarantee of equal protection for all persons,” Gans said.

Samuel Alito, Supreme Court, gay news, Washington Blade

Associate Justice Samuel Alito (Photo public domain)

7. Associate Justice Samuel Alito

Associate Justice Samuel Alito expressed concerns about same-sex marriage, quipping that it’s “newer than cell phones or the Internet.”

“Same-sex marriage is very new,” Alito said. “I think it was first adopted in the Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.”

An appointee of President George W. Bush, Alito hasn’t been on the court long enough to have ruled in the earlier landmark Lawrence and Romer cases. But he wrote the dissenting opinion in favor of LGBT exclusion in the Christian Legal Society case.

Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, said he expects Alito to be consistent and issue an anti-gay decision in the cases before him — taking note of the exchange in the Prop 8 case.

“This line of thinking was disappointing; it not only belittled the fight for equality, but suggested that Justice Alito would first need to be convinced of the ‘effects’ of same-sex marriage before he could determine whether gay and lesbian Americans have a constitutionally protected right to marry,” Soloway said. “This exchange suggested to me that Alito will most likely vote to uphold Prop 8, preferring that legislatures continue to wrestle with this issue.”

Sonia Sotomayor, Supreme Court, gay news, Washington Blade

Associate Justice Sonia Sotomayor (Photo public domain)

8. Associate Justice Sonia Sotomayor

Another justice — this one appointed by President Obama — asked some of the most pointed questions about whether there’s any reason anti-gay laws could survive the court’s lowest standard of review.

Associate Justice Sonia Sotomayor pressed attorney Charles Cooper on whether he could conceive of anti-gay laws on other issues other than marriage that could survive rational basis review. The answer from Cooper was that he could not.

“If that is true, then why aren’t they a class?” Sotomayor responded. “If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing?”

Sotomayor’s response suggests she might agree with the Obama administration that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

A newcomer to the court, Sotomayor hasn’t had the opportunity to rule on many of the earlier LGBT rights cases that have come before the bench. But in the Christian Legal Society case, she joined four other justices in ruling student groups had to accept all students regardless of LGBT status.

Notably, Sotomayor was the only one among nine justices who responded to a letter from a North Carolina 6th grader named Cameron urging justices to rule in favor of marriage equality. The justice said she had no comment on the marriage cases, but urged Cameron to keep “dreaming big.”

NCLR’s Stoll pointed to Sotomayor’s exchange with Cooper as evidence she’d rule against Prop 8 and had similar expectations for how she’d rule on DOMA.

“She seemed perplexed and unpersuaded by Cooper’s argument that excluding gay people from marriage somehow promotes ‘responsible procreation’ by different-sex couples,” Stoll said.

Elena Kagan, Supreme Court, gay news, Washington Blade

Associate Justice Elena Kagan (Washington Blade photo by Michael Key)

9. Associate Justice Elena Kagan

Yet another justice appointed by President Obama seemed skeptical about arguments presented by proponents of Prop 8 and DOMA.

Associate Justice Elena Kagan suggested to attorney Paul Clement that Congress may have had another motive other than uniformity when it determined to pass the anti-gay law.

“This was a real difference in the uniformity that the federal government was pursuing,” Kagan said. “And it suggests that maybe something — maybe Congress had something different in mind than uniformity.”

Clement offered a lengthy response in which he talked about federal bans on polygamy and laws after the Civil War allowing freed slaves to marry. But Kagan responded by reading from the House report on DOMA, which states the law was passed “to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality” — deemed a “gotcha” moment that elicited laughter from those in the courtroom.

During the Prop 8 arguments, Kagan was also skeptical of Cooper’s argument that the purpose of marriage is procreation and asked for a legitimate reason for excluding same-sex couples from marriage.

“Is there any reason that you have for excluding them?” Kagan said. “In other words, you’re saying, well, if we allow same-sex couples to marry, it doesn’t serve the state’s interest. But do you go further and say that it harms any state interest?”

Like Sotomayor, Kagan is a relative newcomer to the court and hasn’t had the opportunity to rule on gay cases. During her confirmation hearing, Kagan wouldn’t say whether the she thinks the U.S. Constitution guarantees same-sex couples the right to marry.

Still, Loyola’s NeJaime said Kagan seemed bothered during oral arguments by equal protections concerns presented by Prop 8 and DOMA.

“Given her lengthy questions about the relationship between age and procreative ability, she seems unconvinced by the ‘responsible procreation’ rationale for same-sex marriage bans,” NeJaime said. “And given her reading of the House report on DOMA regarding the ‘moral disapproval of homosexuality,’ she is suggesting that the law may not survive rational basis review.”

Kate Clinton Video Blog: Thank Evan

http://www.youtube.com/watch?v=hF3aYfXuQ-w

Kate gives a shout out to Freedom To Marry’s Evan Wolfson in the wake of Supreme Court hearings regarding California’s Proposition 8 and the Defense of Marriage Act.

Lesbian couple on origins of Calif. marriage fight

Diane Olson, Robin Tyler, Supreme Court, gay news, Washington Blade, gay marriage, same sex marriage, marriage equality, Proposition 8

Diane Olson and Robin Tyler were in D.C. for last week’s Supreme Court oral arguments in the Prop 8 case. (Washington Blade photo by Michael Key)

For lesbian activists Robin Tyler and Diane Olson, who have been a couple for more than 19 years, last week’s Supreme Court hearing on California’s Proposition 8 had a special meaning.

In February 2004, Tyler and Olson were among the first two couples to file a lawsuit challenging the California law prohibiting same-sex couples from marrying. The lawsuit led to the California Supreme Court’s decision in 2008 declaring that same-sex marriages must be recognized under the state’s constitution.

The two were among the 18,000 same-sex couples to marry in California before marriage equality opponents placed Prop 8 on the ballot that same year. Upon its approval by voters in November 2008, recognition of all subsequent same-sex nuptials ended. Marriage equality activists, however, responded by filing another lawsuit challenging Prop 8, which took the fight to the U.S. Supreme Court.

As Tyler and Olson sat in the Supreme Court chambers on March 26 watching the attorneys argue for and against whether Prop 8 should be declared unconstitutional, each said they couldn’t help but recall how it all started for them 12 years earlier in Beverly Hills, where Olson was raised.

“What happened is starting in 2001 Diane and I would go…to the Beverly Hills courthouse every year to try to get a marriage license,” Tyler said. “And of course they turned us down.”

Added Tyler, “The first year we almost got arrested because MCC brought a cake and they said we couldn’t serve a cake on the sidewalk.” She was referring to the LGBT supportive Metropolitan Community Church, a longtime advocate for marriage equality.

Tyler, an out lesbian comic and entertainer since the 1970s, served as an organizer for the 1979 LGBT march on Washington and two subsequent LGBT marches on Washington in 1987 and 1993. At all three marches, Tyler helped organize same-sex marriage rallies outside the IRS headquarters in downtown D.C., in which hundreds of same-sex couples participated in marriage ceremonies they considered symbolic but that had no legal recognition.

With that as a backdrop, Tyler said the proverbial ‘last straw’ happened to her and Olson in 2004 shortly before she and Olson planned their annual ritual of going to the Beverly Hills courthouse to request a marriage license on or around Valentine’s Day. At the time, the two had been a couple for 10 years.

Gloria Allred, gay news, Washington Blade

Gloria Allred (Washington Blade photo by Michael Key)

“I was going to be 65,” she said. “So I called the American Federation of Radio and Television Artists. I’ve been in the union for years because I was a comic. And I say, you know, I can purchase domestic partnership insurance for Diane,” Tyler recalled.

“But when I retired they said no you are not. And I said why not?” Tyler told the Blade. “And they said because you’re not married. And I said we can’t get married. And the woman said to me, ‘That’s just the way it is, hon.’ And she hung up on me.”

Tyler said she immediately called Gloria Allred, a nationally recognized civil rights lawyer based in Los Angeles, whose clients have been among some of the most famous Hollywood figures. Tyler said she and Allred had been friends for a long time.

“And the next morning she called and said you know what? I’m going to take the case. I’m going to sue for your right to get married to Diane and I’m going to do it pro bono,” Tyler said.

At Allred’s suggestion, Tyler and Olson agreed to invite Rev. Troy Perry, head of the MCC churches, and his husband, Philip De Blieck, who he married in Canada, to be a party to the suit.

Since Valentine’s Day fell on a Saturday in 2004, Tyler said the two couples and Allred decided to go to the Beverly Hills courthouse that year on Feb. 12.

“They handed us this little thing like they did every year – you know, you can’t get married because marriage is a between a man and a woman,” said Tyler. “Gloria was with us and we walked outside and had a huge press conference, and Gloria announced our right to marry.”

Allred said she informed the media that the lawsuit would challenge a state family code that banned same-gender marriage.

In a development that surprised them and their supporters in L.A., then San Francisco Mayor Gavin Newsom that same week began performing same-sex marriages in City Hall in defiance of the state law banning such marriages. The first couple that Newsom himself married was veteran lesbian activists Del Martin and Phyllis Lyon, who were in their 80s.

“Someone called me and said Del and Phyllis, who were friends of ours, are getting married,” Tyler said. “I said what? And we turned on the television and there is Gavin Newsom Marrying Del and Phyllis.”

Allred said some have confused the role that Newsom and litigants like Tyler and Olson played in the marriage equality battle.

“The most important thing was that we were challenging the law, which prohibited them from being able to enjoy the right to marry each other,” Allred said. “What happened in San Francisco was slightly different. The mayor started marrying couples without getting a judicial declaration that the family code prohibiting such marriages was unconstitutional.”

Marriage equality opponents quickly obtained a court order halting San Francisco from performing same-sex marriages. Opponents next persuaded the court to invalidate all of those marriages on grounds that they had no legal standing.

Many of the couples whose marriages were invalidated joined the San Francisco County Attorney in filing their own lawsuits challenging the state’s same-sex marriage ban. The court later merged those suits with the suit filed by Tyler, Olson, Perry, DeBlieck and others.

After four years of litigation, the California Supreme Court ruled in early 2008 that the state’s same-sex marriage ban violated the California Constitution and that same-sex marriages must be recognized in the state.

Due to their role as the first to file suit over the marriage question, Tyler and Olson were given permission to be the first same-sex couple to marry in L.A. County – one day ahead of everyone else.

Tyler and Olson acknowledge that the joy of their wedding was dampened later in the year when Prop 8 passed, even though the state Supreme Court ruled their marriage and those of the 18,000 other same-sex couples who married prior to the approval of Prop 8 would remain valid.

But the two said their wedding on the steps of the Beverly Hills courthouse was a special moment for them and their friends and supporters.

“And I want to tell you the mayor of Beverly Hills offered us City Hall, which would have been my dream,” Tyler said. “But we decided to marry in front of the courthouse because that’s the same courthouse that had turned us down all those years,” she said.

“And this time when we walked in with Gloria to get our marriage license the woman behind the counter that gave us the license started to cry,” said Tyler. “She said I’ve wanted to give this to you ever since you started to come in.

“And we walked out and we had no idea that the press would be there from all over the world,” Tyler continued. “And a policeman came up to me and said I was the cop that almost arrested you in 2001 for serving cake, and I’m proud to be at your wedding. So it had come full circle for us when we got married.”

Nine years later, as Tyler, Olson and Allred watched with great interest as the Supreme Court justices asked sharp questions in Washington to the lawyers arguing for and against Prop 8, Tyler said the comments by some of the justices cause her great discomfort.

“I was so full of emotion and so angry having to sit in the Supreme Court and hearing them refer to us as an experiment and to compare us to cell phones and the Internet,” she said, referring to comments by Justice Samuel Alito.

In remarks she said he hadn’t planned to make before the C-SPAN TV cameras on the plaza outside the Supreme Court, Tyler said she expressed her outrage over the remarks by some of the justices.

“I said we’re a civil rights movement. We’re not an experiment. And we’re going to win,” she told the Blade. “How dare they…,” she added, before cutting short her own comment.

Casey backs same-sex marriage

Bob Casey, Pennsylvania, United States Senate, Democratic Party, gay news, Washington Blade

Sen. Bob Casey (D-Pa.) (Washington Blade photo by Michael Key)

Pennsylvania Sen. Bob Casey on Monday became the latest U.S. senator to announce his support for marriage rights for same-sex couples.

“As a senator and as a citizen, I can no longer in good conscience take a position that denies her and her family the full measure of equality and respect,” the Democrat said in a statement after reading a letter he received from a Pennsylvania woman who talked about her partner and their children. “I understand that many Americans of good will have strong feelings on both sides of this issue. I believe elected public officials have an abiding obligation to refrain from demonizing and dividing people for partisan or political gain. Rather, Democrats and Republicans should come together and find areas of agreement to do what’s best for the country, including lesbian and gay Americans.”

Casey, who first announced his support of same-sex marriage during an interview with a reporter from the Morning Call newspaper in Allentown, Pa., earlier on Monday, backed the issue less than a week after the U.S. Supreme Court heard oral arguments in cases that challenge California’s Proposition 8 and the Defense of Marriage Act.

U.S. Sens. Claire McCaskill (D-Mo.,) Tim Kaine (D-Va.,) Mark Warner (D-Va.,) John Tester (D-Mont.,) Jay Rockefeller (D-W. Va.,) Mark Begich (D-Alaska,) Kay Hagan (D-N.C.) and Rob Portman (R-Ohio) all endorsed marriage rights for same-sex couples in the days and weeks before the justices heard oral arguments in the two cases. U.S. Sens. Joe Manchin (D-W. Va.,) Mary Landrieu (D-La.,) Mark Pryor (D-Ark.,) Bill Nelson (D-Fla.,) Heidi Heitkamp (D-N.D.,) Tom Carper (D-Del.,) Tim Johnson (D-S.D.) and Joe Donnelly (D-Ind.) are the only Senate Democrats who have yet to publicly back nuptials for gays and lesbians.

“Senator Casey is a thoughtful and contemplative man who today not only listened to the millions of voices of Pennsylvanians calling for him to support same-sex marriage, but strongly voiced that support as well,” gay Pennsylvania state Rep. Brian Sims (D-Philadelphia) said. “I am pleased to see Senator Casey responding to the voices of his constituents and am eager to work with him in reaching out to the hundreds of thousands of LGBT Pennsylvanians who can now count on his support for LGBT equality.”

Adrian Shanker, president of Equality Pennsylvania, a statewide LGBT advocacy group, also applauded Casey.

“Marriage matters for all families,” Shanker said. “Senator Casey’s support for marriage for all committed couples puts him squarely on the right side of history.”

White House won’t make predictions on Supreme Court

The White House on Thursday wouldn’t make predictions on marriage rulings at the Supreme Court (Washington Blade file photo by Michael Key)

Legal experts are prognosticating on how the U.S. Supreme Court will rule on marriage equality cases based on oral arguments this week, but don’t look to the White House for an assessment.

Under questioning from the Washington Blade, White House Deputy Press Secretary Josh Earnest declined to say on Thursday whether President Obama is confident justices will strike down California’s Proposition 8 and the Defense of Marriage Act.

“It was about a year ago that I was actually standing at this podium in this room, where people were warning of the terrible argument that had taken place before the Supreme Court in defense of the President’s Affordable Care Act — people warning that the Supreme Court was poised to strike down that in a pretty decisive fashion based solely on the arguments that were made by the attorneys, and by the questions that were posed by the justices,” Earnest said. “Those predictions demonstrated how unwise it is to make predictions about the outcome of Supreme Court cases based solely on the arguments that were presented orally, so I don’t want to judge, or prejudge, or predict what the Supreme Court’s ruling will be when it’s announced later this summer.”

Earnest similarly dodged when asked if Obama would welcome a ruling from the Supreme Court that would institute marriage equality throughout the country.

“Again, I don’t want to get into parsing how the president would respond to possible decisions that are offered by the justices, so when we get an announcement of a decision from them later this summer, you can expect a reaction from us,” Earnest said.

Watch the video here:

Gay What?

NEWS