People's Brief in Support Of SSM

Barack Obama was "bullshitting" his opposition to gay marriage and support for civil unions during his 2008 presidential campaign, according to a new book authored by former senior White House adviser David Axelrod.

The biggest reveal here -- since the fact that pols soften their positions for political reasons etc. is not freaking news unless you are six years old -- is that Axelrod convinced Obama to do this, even though he found it hard to b.s. He comes off as a reluctant b.s. artist. We are supposed to be "cynical" about this sort of thing.  I'm just annoyed at people who suggest we are supposed to be surprised or even that upset at this.  Come on.

I have seen comments about how upset people are that Obama "lied" here (even the "hopey changey" guy -- not St. Obama!!!!) as well as how he flipped flopped on marriage from back when he was Mr. Nobody in the '90s.  Shut up!  I'm so sick of the same old crap.  Bottom line, he and his administration did more for the rights of each letter in the GLBTQ movement than any other.  They are pushing for the rights of transexuals. The Administration stick their neck out on DOMA, pushing for heightened scrutiny for sexual orientation.  Pushed for the end of DADT.  etc. etc.  Even in his campaign bio when he opposed same sex marriage, Obama said he was open to change on the point.  To be shown to be wrong or outdated.

Worry about this guy -- Sen. Ted Cruz and his push for an amendment to block judges from upholding marriage rights.  Does he actually believe this crap (like his supporter "reasonable" Eugene Volokh did a few years back when he was anti-marriage amendment curious? asshole)? Who knows. I judge him by his deeds.  Such is part of the test of "animus" as a legal matter too.  A "people's [amicus] brief" spells this out:

HRC’s Chad Griffin — who fought California’s Prop 8 — joins with DOMA-slayer Robbie Kaplan to describe the “animus” that they say is behind states’ marriage bans. The brief will be one of many amicus briefs to hit the Supreme Court in coming months.

The additional wrinkle here -- I did it -- is that people can sign it, like a petition or something.  I appreciate the brief since it addresses what to me is a particular problem with most of the states' anti-SSM laws -- they are a sort of special burden and message of unreasoned dislike that is a type of adding insult to error.  Blatant animus is possible but not necessary:

“You don’t have to have hatred in your heart,” Kaplan said in explaining what legal “animus” means, “but you have to have a misunderstanding or a failure to understand or appreciate that the gay couple who’s living across the street from you are just the same as you are.  It’s that lack of understanding in this context, which I think explains what happens, and which gives the court, I think, a reason to hold that various statutes and constitutional amendments before it are unconstitutional.”

The states did not just let the legislatures decide the question (like mine own state -- NY -- or Hawaii, which had a state amendment that merely gave legislative discretion to deny SSM).  SSM was seen as so scary and/or different that constitutional amendments were necessary, even to recognize out of state marriages (generally put to a lesser test). There is enough baggage here that it is hard to imagine legislative action without these barriers that blocked SSM would lack animus even then. The sentiments will overlap, the lack of reasonableness of the denial of a range of rights tied to marriage (even "civil unions" will in practice deny some) will be apparent.  A group will be targeted with a special degree of disrespect.

It is true that  relying on "animus" doesn't go quite all the way.  Windsor reads like an animus decision with it's notation of laws that should be looked at with special wariness.  But, it also speaks of same sex marriages as having the same qualities as different sex marriages, so ultimately it has the net effect of being like Lawrence v. Texas -- intimate associations should be enjoyed by both groups.  This would ultimately knock down the few states left in recent years without some sort of special barrier.

Marriage is a fundamental right and sexual orientation should be treated with heightened scrutiny.  But, especially in respect to the states at issue in the lawsuits to be decided by SCOTUS, there is a somewhat narrower ground that could do the trick.  And, it also would help provide context on just what is happening here.  It is not quite like the case that led the 9CA to provide heightened scrutiny for sexual orientation -- the issue of peremptory challenges. Such a narrow issue that was not subject to constitutional amendments and the like is a somewhat closer call.

The brief is signed by the lead lawyer in the Windsor case as well as Dale Carpenter, who wrote a very good book on Lawrence v. Texas. Check it out.  There are going to be lots of these briefs, but you cannot sign them!

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* The brief provides a summary of the usual arguments mixed in with the focus on animus, particularly on why the usual explanations for bans don't work. Besides wondering "if not now, how long?," it says that the unions that need protection here are not all that new anyways. We need to see the:

true significance of the decades-long emergence of gay couples and families in American life. These relationships and families have not sprung up overnight, as if they were somehow the abstract creation of political activists. Rather, gay couples have been supporting each other, raising children together, and facing the same quotidian joys and burdens (“in sickness and in health”) faced by other married couples for many years. Social science has been studying gay relationships and parenting for decades.

After all, "States and local governments, in addition to private employers, have been formally recognizing such relationships since at least 1984."  There will be briefs that refer to a lot older signs.  To me, along with the special insult argument (and the basic understanding that the couples here have the same rights and reasons for them as others), the key thing to not forget is that same sex marriage is not really new.  Couples have been in a form of common law marriage without a license for decades.  

The failed attempt decades ago in by a couple still around in Baker v. Nelson underlines the point -- it is just a matter of recognizing it.  Selectively not recognizing it when the indicia is there underlines the animus and need for heightened scrutiny. If not the lack of a rational and legitimate state basis (mere moral opposition or sex discrimination)!