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Responses to My Same-Sex Marriage Article

This week is a “holiday” at the Supreme Court, meaning the Justices don’t hear any cases and won’t release any decisions. Therefore, given my brief reprieve, I’d like to take the time to address the two comments on my article from last week, “Same Sex Marriage Cases at the Supreme Court.” The first comment, provided by an individual named Kenny Claing, is less of a comment and more of a magnum opus—at around 615 words, I can’t include the entire text in my article, but you should all take the time to read it in its original form before I respond to certain parts of the comment. I’ll even wait for you to look it over before moving on.

Read it yet? Yes? Good, let’s begin. Mr. Claing, my main problem with your comment is that you wrote an entire testimony about why the Supreme Court “should throw out and dismiss the whole Same Sex Marriage [sic] case,” which is commendable, but you didn’t actually comment on my article at all! If you have these thoughts, you should consider sharing them in a more public method (perhaps as a staff writer for BPR?). I would’ve liked to hear what you had to say about my words in particular. But that’s alright; it’s probably more productive for me to refute the arguments that you do present rather than read criticisms. Moving on. You say that there are “three Major [sic] reasons” that the Supreme Court should dismiss both same-sex marriage cases heard during the last week March—Hollingsworth v. Perry and Untied States v. Windsor—and I will address each of your reasons separately.

Your first reason to throw out both cases is that there is “no difference between a Religion or Orientations [sic]” and that “to ‘say’ that one is Religious or Homosexual [sic] is just a “claim” to be one.” If I follow you correctly, “the Entity [sic] is known but the Identity [sic] is unknown and indiscernible in the person” means that a person’s religious affiliation and sexual orientation are both things chosen by the person, and that they are not inherently a part of who that person is. To you, the homosexuality of the individuals bringing both Hollingsworth and Windsor is merely an “identity,” a false or invented aspect of themselves, and is equitable to the petitioners’ religion. There is indeed a “Separation of Religion and State, (First Amendment) [sic],” and, in your mind, religion and sexual identity are comparable. Therefore, there should also be separation between sexual identity and state and thus the cases should get thrown out.

This argument doesn’t… make much sense… from a legal standpoint, because the Supreme Court has, over time, heard many cases having to do with religion in the United States; it just rules to uphold the separation between organized religion and our system of government. See, for example, Engel v. Vitale, which made it unconstitutional for public schools to start their school days with a prayer, or Locke v. Davey, which upheld a University of Washington publicly-funded scholarship that excluded students wishing to pursue a degree in devotional theology. Even though separation between church and state exists, the Court still has to hear the cases about separation of church and state in order to preserve it. So, even if (and that’s a very big if) it was somehow possible to claim that sexual identity is “chosen” in the same way that one’s religion is, and someone argued that separation of church and state is equal to separation of sexual identity and state, the Supreme Court would still have to hear these cases in order to decide how to define said separation of sexual identity and state.

Moving on to your next point—you discuss “having “standing” in a Court of Law [sic]” and then go on a rant about the fact that homosexuality “cannot be found with X-RAY, MRI, DNA, BLOOD TEST [sic] or birth certificate,” meaning that it is a “Lie” and that the Supreme Court should not “give “standing” to the unknown.” You then make the bold statement “No Proof, No [sic] standing.” I do address the issue of standing in both cases in the body of my article, so I won’t rehash that whole set of explanations. But I think it is important to point out that you seem to misunderstand what standing is in the Supreme Court. In any court of law, standing is simply proof that a party has been harmed sufficiently (by the law or the action that the party is challenging) in order to bring the case to court. For standing in the Supreme Court specifically, the Court itself described it best. Warth v. Seldin, states that, “In essence the question of standing is whether the litigant is entitled to have the court [sic] decide the merits of the dispute or of the particular issues.”

So, first, “regular court standing.” Were the petitioners in Hollingsworth directly harmed by the 9th Court of Appeals’ striking down of Proposition 8? Perhaps not. Was Edith Windsor, petitioner in Windsor, harmed by the Defense of Marriage Act, which forced her to pay thousands of dollars of taxes on her deceased partner’s estate because she couldn’t marry her partner, another woman? Yes, I’d say that’s harmful. Now, “Supreme Court standing.” Are the petitioners in Hollingsworth entitled to have the Supreme Court decide the merits of their case? This was, in fact, a pretty huge issue during the oral arguments, and, again, go read my article to get the nitty-gritty details. But, in short, I’d say probably not, due to the fact that a federal court already decided the issue and that court’s decision will not have widespread effects on the laws of other states. But is Edith Windsor entitled to have the Court decide the merits of her dispute? Again, I’d probably say yes—she’s claiming that she was harmed by a federal law. The standing problem with that case is more related to the fact that the federal government didn’t want to support DOMA (i.e. it wanted to “side with” Windsor) but had to because DOMA is a federal law. So, there you have it: standing problems solved.

And what’s your last argument? Ahh, yes, that we shouldn’t look to Loving v. Virginia as precedent for either Hollingsworth or Windsor because “First, it was mainly about Race [sic]. Second, it involved a Male and a Female [sic]. Third, the ruling went further, they said [sic] that Marriage [sic] is a basic Civil Right [sic]. Yes. Between a Male and Female [sic], and each Gender has that Right [sic].” I’m sorry, but I’m not even going to touch this one. If you want a debate about what properly constitutes marriage, and who can marry whom, you’ve come to the wrong place. Society once forbid marriage between men and women of different races, but it has since progressed. It now forbids marriage between two people of the same sex, and roughly half of our nation (53% as of December 2012, according to Gallup) agrees that this discrimination needs to end. However, if you’re going to be close-minded, I don’t need to go any further.

Okay. One comment down, one to go. Let’s see what our friend “wayne” had to say about my article in his notably shorter comment… “Actually, the California case does not rest solely upon equal protection principles. Unique in that case is the fact that the California Supreme Court had found a state constitutional right of same sex marriage. So the issue is whether a popular vote can deprive a class of citizens of a constitutional right. Using this approach, SCOTUS’ decision against Prop 8 would have an effect limited to California.”

Okay, wayne, that’s a pretty good point. However, the way the Supreme Court has chosen to frame the questions behind California Prop. 8 case—Hollingsworth, not Windsor—are such that the Court’s main focus is the Fourteenth Amendment and Equal Protection. As the Court provided, those two questions are: “(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case” (from SCOTUSblog). So, even though your concern about a popular vote oppressing the rights of others is valid (and it seems to indeed fall under questions of the Fourteenth Amendment’s Equal Protection Clause), you need to look at the scope of the case as defined by the Court. And yes, no matter what, the Supreme Court’s decision in Hollingsworth will have an effect limited to California. However, other states might then use that decision to inform their own legislative choices.

Phew, that was a lot of refuting. Here’s hoping that next week brings us some juicy Supreme Court news!

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.