Judg­ing gay mar­riage

Los Angeles Times - - OPINION - By Billy Cor­ri­her and Eric Lesh Billy Cor­ri­her is the direc­tor of re­search for legal progress at the Cen­ter for Amer­i­can Progress. Eric Lesh is the fair courts project manager for Lambda Legal. Lambda Legal filed briefs in the Texas, Mas­sachusetts, Conn

The U.S. Supreme Court will rule this month in Oberge­fell vs. Hodges, the case that could give same-sex cou­ples across Amer­ica the free­dom to marry. The ma­jor­ity of states al­ready have mar­riage equal­ity, and the is­sue has lost salience for some. But the Oberge­fell de­ci­sion still mat­ters. In sev­eral con­ser­va­tive states, chal­lenges to dis­crim­i­na­tory bans have not had as much suc­cess.

State high courts in Mas­sachusetts, Con­necti­cut, Iowa and New Jer­sey ruled in fa­vor of mar­riage equal­ity. State judges in Hawaii and Cal­i­for­nia also did so, but bal­lot mea­sures later over­ruled the de­ci­sions.

The judges in th­ese states have some­thing in com­mon: They were all ap­pointed. Like fed­eral judges with life ten­ure, they felt at lib­erty to side with equal mar­riage rights for same­sex cou­ples, even if in so do­ing they were sid­ing against the ma­jor­ity.

The elected judges in states such as Texas and Arkansas, how­ever, have lagged be­hind for years, per­haps be­cause they feel pres­sure to rule based on popular sen­ti­ment. Per­haps they re­mem­ber the 2010 re­ten­tion elec­tion in Iowa, when anti-gay groups ran a suc­cess­ful cam­paign to oust three Iowa Supreme Court jus­tices who had joined a unan­i­mous opin­ion in fa­vor of the free­dom to marry.

Even when a fed­eral court in Alabama ruled this year that same-sex cou­ples had the right to marry, the elected state Supreme Court — led by mar­riage equal­ity op­po­nent Chief Jus­tice Roy Moore — told judges in the state to defy the fed­eral or­der.

In­stead of out­right de­fi­ance, jus­tices in Arkansas and Texas seem to be avoid­ing a po­lit­i­cal con­tro­versy by de­lay­ing their rul­ings.

One case in­volv­ing a same­sex cou­ple who moved to Texas af­ter get­ting mar­ried in Mas­sachusetts has dragged on for years. The cou­ple, who sued as “J.B.” and “H.B.” be­cause Texas does not pro­hibit fir­ing some­one for be­ing gay, sep­a­rated in 2009, and J.B. filed an un­con­tested pe­ti­tion for di­vorce.

Un­con­tested, that is, un­til the state in­ter­vened. The state ar­gued that its ban on rec­og­niz­ing their union also meant it could not al­low them to di­vorce. If this stands, they would be for­ever bound in a legal sta­tus they could not es­cape.

The Texas Supreme Court got the case in 2011, but it did not hear oral ar­gu­ments un­til Novem­ber 2013. There has been only si­lence from the court since then. In April, nearly six years af­ter the cou­ple filed for di­vorce, H.B. died, with­out any res­o­lu­tion. Ja­son P. Steed, one of their at­tor­neys, said, “It’s un­set­tling. When the court re­fuses to de­cide cases, it’s re­fus­ing to do its job.”

While the Texas Supreme Court has been mute, the Ar- kansas Supreme Court has en­gaged in a very public de­bate about de­lay­ing its de­ci­sion in a mar­riage equal­ity law­suit. In May 2014, an Arkansas judge ruled that the state’s mar­riage ban vi­o­lated the U.S. Con­sti­tu­tion, com­par­ing mar­riage equal­ity to the 1967 U.S. Supreme Court de­ci­sion in Lov­ing vs. Vir­ginia, which in­val­i­dated state bans on in­ter­ra­cial mar­riage.

Within three days of the Arkansas de­ci­sion, 169 same-sex cou­ples had ap­plied for mar­riage li­censes in Pu­laski County. The state briefly rec­og­nized their unions. But so­cial con­ser­va­tives, in­clud­ing for­mer Arkansas Gov. Mike Huck­abee, im­me­di­ately called for the judge’s im­peach­ment.

The Arkansas Supreme Court placed the mar­riage equal­ity or­der on hold un­til it rules. Then two new jus­tices joined the court in Jan­uary, months af­ter the court heard oral ar­gu­ment in the case. A ma­jor­ity of the court in­ex­pli­ca­bly ruled that this re­quired a new law­suit to fig­ure out who should hear the case, adding to the de­lay.

In a rare public let­ter, Jus­tice Jim Hannah claimed that a ma­jor­ity of the jus­tices had “cre­ated out of whole cloth an is­sue to de­lay the dis­po­si­tion” of the mar­riage equal­ity law­suit, and he re­cused him­self from the new case. Jus­tice Paul Daniel­son also re­cused him­self, writ­ing that he could not eth­i­cally be “com­plicit in … de­priv­ing jus­tice to any party be­fore this court.”

For some fam­i­lies, this month’s de­ci­sion from the U.S. Supreme Court is their first chance at res­o­lu­tion in years. They are en­ti­tled to, at the very least, ac­cess to jus­tice. And that re­quires judges who are pre­pared to rule on im­por­tant is­sues in a timely fash­ion — with­out fear of pol­i­tics.

Elected judges may feel pres­sure to rule based on popular sen­ti­ment.

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