France legalizes same-sex marriage after divisive protests

By Emily Senger - Tuesday, April 23, 2013 at 11:36 AM - 0 Comments

French President Francois Hollande. (Alexander Widding/Polaris)

France has become the latest country to pass a law permitting same-sex marriage.

Legislators voted in favour of a bill Tuesday that would permit same-sex couples to marry and would also allow them the same adoption rights as heterosexual couples.

The bill passed with a vote of 331 in favour and 225 opposed and it followed “impassioned speeches” by those on both sides of the issue, reports CNN

Prior to the vote, opponents held mass protests, that BBC News calls some of the largest seen in the country in recent years. Supporters of the bill accused opponents of encouraging violent attacks on gay people and a government official was sent gunpowder in the mail, with instructions to halt the final vote. Continue…

New Zealand House of Reps bursts into song after legalizing same-sex marriage

By Emily Senger - Wednesday, April 17, 2013 at 9:27 AM - 0 Comments

New Zealand lawmaker Louisa Wall. (Nick Perry/AP)

New Zealand passed a bill allowing legal same-sex marriage Wednesday, prompting a jubilant celebration in the House of Representatives.

The bill passed with 77 in favour and 44 against, making New Zealand the first country in the Asia-Pacific region to legalize same-sex marriage, reports BBC News.

As the speaker read out the votes, noting that the bill had passed, spectators watching in gallery started singing the New Zealand love song “Pokarekare Ana.” Below, MPs hugged Louisa Wall, who sponsored the bill.

Continue…

U.S. Supreme Court to hear landmark same-sex marriage case

By Emily Senger - Tuesday, March 26, 2013 at 8:20 AM - 0 Comments

Sandy Stier, left, and Kris Perry of Berkeley, Calif., arrive at the National Archives in Washington, Monday, March 25, 2013, to view the U.S. Constitution, a day before their same-sex marriage case is argued before the Supreme Court. (Jose Luis Magana/AP)

The U.S. Supreme Court will today hear arguments in a landmark gay marriage case that could make same-sex marriages legal in the States.

On Tuesday, the court will hear arguments against Proposition 8, California’s 2008 law that prohibits same-sex marriage and defines marriage as taking place between a man and a woman. Up on Wednesday are arguments for and against DOMA, the Defence of Marriage act, which bars the federal government from offering some rights to same-sex couples, even if their home state allows them to wed.

This court case will not be televised, so both supporters and opponents of same-sex marriage have been lined up outside the court since as early as Thursday, waiting for one of the few spaces inside. Those in the line have endured some nasty spring weather, including snow, during their camp out. A report in Washington blog DCist says the first ones in line seemed to be in the pro-gay-marriage camp.

Two of the plaintiffs the court will hear from Tuesday are Paul Katami and Jeff Zarrillo, a couple from Burbank, California. “Stigma is stigma. And discrimination is discrimination,” Katami told CNN. “I think that any time there’s discrimination in the country it needs to be addressed and it needs to be taken care of. And that’s why we feel that anytime in our history when there’s been racial discrimination or sexual discrimination of orientation or in particular marriage at this point that we always bend toward the arch of equality.” Continue…

Obama and marriage: The arc of the moral universe is pretty bloody slow

By Paul Wells - Thursday, May 10, 2012 at 3:59 PM - 0 Comments

Barack Obama, who ran for President in 2008 with a position on same-sex marriage that would have got him called a member of the Harper Conservatives’ social conservative wing if he were Canadian, has “evolved” until he now supports equal marriage rights for same-sex couples.

A lot of the commentary over his decision is ecstatic. A lot of the news coverage is, well, awkward. Is this how one makes a principled decision these days?

As described by several aides, that quick decision and his subsequent announcement in a hastily scheduled network television interview were thrust on the White House by 48 hours of frenzied will-he-or-won’t-he speculation after Vice President Joseph R. Biden Jr. all but forced the president’s hand …

Advisers say now that Mr. Obama had intended since early this year to define his position sometime before Democrats nominate him for re-election in September. …

Initially Mr. Obama and his aides expected that the moment would be Monday, when the president was scheduled to be on “The View,” the ABC daytime talk show, which is popular with women. Certainly, they thought, he would be asked his position on same-sex marriage by one of the show’s hosts, who include Barbara Walters and Whoopi Goldberg.

Yet the pressure had become too great to wait until then, his aides told him; on Monday, the White House press secretary, Jay Carney, was pummeled with questions from skeptical reporters…

And so it was that Mr. Obama on Wednesday afternoon sat down in the White House with ABC’s Robin Roberts…

Why, it’s Lincolnesque, isn’t it? Continue…

Obama: Same-sex couples should be able to get married

By Gustavo Vieira - Wednesday, May 9, 2012 at 4:16 PM - 0 Comments

U.S. President Barack Obama said on Wednesday he thinks same-sex couples should be able to get married, reversing his long-standing position on the issue.

The president made the comments during an interview with ABC News, following similar comments by his vice-president, Joe Biden, who earlier this week said he was “absolutely comfortable” with allowing same-sex marriages. Obama stopped short of going any further on the issue, saying that this is a personal position and that he supports the idea of leaving it up to individual U.S. states to legislate the matter on their own. On Tuesday, North Carolina voters overwhelmingly approved a state constitution amendment to ban same-sex unions, making the southern state the 31st to approve such an amendment.

The issue has become a hot topic in the race for the White House this fall, placing Obama now on side with defenders of same sex unions against his opponent, Republican Mitt Romney, who opposes the idea. Speaking to a local Fox News affiliate in Denver, Co., on Wednesday, Romney said “I do not favor marriage between people of the same gender.”

From ABC News:

In an interview with ABC News’ Robin Roberts, the president described his thought process as an “evolution” that led him to this decision, based on conversations with his staff members, openly gay and lesbian service members, and his wife and daughters.

“I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that ‘don’t ask, don’t tell’ is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” Obama told Roberts in an interview to appear on ABC’s “Good Morning America” Thursday.

Scary hypotheticals

By Aaron Wherry - Tuesday, February 14, 2012 at 9:54 AM - 0 Comments

Justin Trudeau offers a complicated hypothetical involving gay marriage, abortion and “ten thousand” other things to explain how he could maybe one day think Quebec needs to separate from Canada. Via Twitter, he attempts to clarify.

Jesse Helmer Seriously, @justinpjtrudeau? Please reassure me you are not OK with Quebec separating.

Justin Trudeau, MP @jesse_helmer Don’t worry, Jesse: exactly the opposite: Canada needs Qc to balance out Harper’s vision that I (and many) just don’t support.

Divorce and equality

By Aaron Wherry - Monday, January 16, 2012 at 3:30 PM - 0 Comments

Irwin Cotler responds to the Justice Minister’s comments last week about the laws governing same-sex marriage.

While it is true that there exists a Canadian residency requirement of one year before a couple may divorce here, this requirement applies to all marriages — homosexual and heterosexual — and existed long before same-sex marriage was adopted in this country. Indeed, this provision is from the 1985 Divorce Act introduced by the Conservative government of Brian Mulroney. Certainly, if this provision needed fixing so urgently as a result of same-sex marriage, the Conservatives have had ample opportunity to do so since their assent to power in 2006.

While it appears that the couple in this particular court case — comprised of one partner from the UK and the other from Florida — may not meet this requirement, the government could have rested its case here. Instead, the government went a step further and deserves to be called out on its approach — it is one thing to say this couple cannot divorce because the residency requirement has not been met; it is an entirely different contention — and an offensive if not discriminatory one — to assert that the couple was never married in the first place. This is to turn fact and law on its head, while in the process undermining equality for gays and lesbians.

A legislative gap

By Aaron Wherry - Friday, January 13, 2012 at 1:23 PM - 0 Comments

While blaming the Liberals for whatever might be wrong with the laws concerning same-sex marriage, the Justice Minister assures that everything will be fine.

Speaking at a Toronto luncheon Friday, Mr. Nicholson blamed the Liberal government that preceded his for not filling a “legislative gap” that has left thousands of same-sex couples in an agonizing position of being unable to divorce should they feel a need to. The situation has been “completely unfair to those affected.” Mr. Nicholson said. “I want to make it clear that in our government’s view, these marriages are valid.”

‘The law recognizes same-sex marriage in Canada’

By Aaron Wherry - Thursday, January 12, 2012 at 7:29 PM - 0 Comments

Brian Topp and Paul Dewar respond to today’s news. Emmett Macfarlane considers the case and defers to the Charter.

The Prime Minister was in British Columbia just now for a shipbulding announcement and was asked again about the case.

We’re not going to reopen that particular issue. This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government’s position on that.

Mr. Harper was then asked specifically whether the government considered the same-sex marriages of non-citizens to be legal or not.

The law recognizes same-sex marriage in Canada and the government is not going to reopen that issue.

The reporter who asked the second question was heckled when he did so.

Are some marriages more equal than others?

By Emmett Macfarlane - Thursday, January 12, 2012 at 6:56 PM - 0 Comments

Today’s news that government lawyers are arguing same-sex marriages performed in Canada are not valid if the couple resides in a jurisdiction that doesn’t recognize them has caused considerable controversy. It’s a case that pits established equality rights against the intricacies of Canadian family law and principles of international comity (i.e. recognizing other countries’ laws).

The legal issues involved are complex. While there is no residency requirement to get married in Canada, there is one for divorce (to get a divorce you must have lived in Canada for a year). For that reason the ability of non-resident, same-sex partners who get married in Canada to later obtain a divorce has been up in the air.

The difference here is that government lawyers do not simply want to deny a divorce because the couple does not meet the residency requirement. Instead, they argued that because Florida and the United Kingdom (the jurisdictions the couple comes from) do not recognize same-sex marriage, their marriage in Canada was never valid in the first place. Continue…

‘Options to clarify the law’

By Aaron Wherry - Thursday, January 12, 2012 at 3:56 PM - 0 Comments

A statement from Justice Minister Rob Nicholson.

I want to be very clear that the Government has no intention of reopening the debate on the definition of marriage.

This case today involved the fact that, under current law, some marriages performed in Canada could not be dissolved in Canada.

I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.

Harper denies changing stance on same-sex marriage

By macleans.ca - Thursday, January 12, 2012 at 2:53 PM - 0 Comments

Prime Minister Stephen Harper denied Ottawa is reconsidering its position on same-sex marriage, after a government lawyer filed a submission suggesting that same-sex marriages performed in Canada are not valid for non-residents, CBC reports. The submission was filed in a divorce case involving a lesbian couple from Florida and the U.K. While Canadian marriage laws do not require residency, divorce laws do. This inconsistency has particular relevance for same-sex couples, who may not be able to divorce after being married in Canada. Harper said the submission does not represent a re-visiting of the same-sex marriage debate. At a ship-building event in Halifax, the prime minister said, “We have no intention of further reopening or opening this issue,” while noting that he did not know of the details of the particular case in question.

CBC

What is and is not a marriage?

By Aaron Wherry - Thursday, January 12, 2012 at 1:57 PM - 0 Comments

Robert Leckey, president of Egale, points with concern to both this latest court case and the case of a Canadian citizen in Britain.

In both cases, we shouldn’t let the technicalities distract us from matters of principle. A government proud that Canada’s Parliament has granted equal marriage rights to gay men and lesbians would stand behind such marriages, however other countries saw them. And a government supportive of equality would affirm other countries’ efforts to recognize gay relationships.

The CBC has the legal documents. Olivia Chow calls on the Prime Minister to redirect the Justice Department lawyer.

‘Their marriage is not legally valid under Canadian law’

By Aaron Wherry - Thursday, January 12, 2012 at 9:53 AM - 0 Comments

In court, the Harper government is apparently arguing against the legality of some same-sex marriages conducted in this country. Asked about the Globe story detailing this situation, the Prime Minister stuck to his previous public stance.

But speaking in Halifax Thursday, the Prime Minister said the issue was not on the agenda for his majority Conservatives. “We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report…

“In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details,” Mr. Harper said. “This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking them to provide more details”

Bob Rae is unimpressed.

Proposition Bert and Ernie

By Emma Teitel - Tuesday, August 23, 2011 at 8:50 AM - 3 Comments

In 2009, the National Organization for Marriage—America’s foremost opponent of same-sex marriage, civil unions, and gay adoption rights—launched an ad campaign called “Gathering Storm” in an attempt to pass Proposition 8, which would bar the door to legalize same-sex marriage in California. The commercial featured actors of all creeds (because bigotry knows no colour), standing stern against a backdrop of stormy clouds, relaying the following messages: “The winds are strong,” “We—are—afraid,” and “There’s a storm gathering.”

That storm, of course, was gay marriage, and all the evils it would carry with it: (1) the obliteration of the sanctity of marriage, (2) the collapse of the traditional family, and (3) the blatant homosexual indoctrination of “our” children. Statistics have since proven 1 and 2 are non sequiturs (divorce rates are unusually low in states that sanction gay marriage, where, remarkably, traditional God fearing families still abound).  But it’s the latter threat that has anti-marriage folk all hot and bothered these days. Why? Because according to one of NOM’s most recent blog posts, “an online campaign to pressure the producers of Sesame Street into having lovable roommates Bert and Ernie get married is gathering steam.” The big gay Storm, it seems, has gotten steamy—so much so that it threatens to corrupt odd couple Ernie and Bert, all the while predisposing your Sesame Street-watching child to a life of sexual deviance. Continue…

Same-sex marriage legal in New York

By macleans.ca - Monday, June 27, 2011 at 1:08 PM - 0 Comments

On Friday New York became the seventh, and largest state in the U.S. to legalize same-sex marriage. Gay rights groups hope this landmark moment will give way to many others, as advocates in neighbouring states lobby for similar legal reform. Same-sex marriage is now legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Rhode Island. The state’s new law will go into effect next month, at which point twice as many Americans will live in gay-marriage friendly jurisdictions. Marriage reform across the country, however, may not come so easy, as 29 states have constitutional bans on same-sex marriage and 12 have laws against it.

Sydney Morning Herald

Leadership moments in New York

By John Parisella - Monday, June 27, 2011 at 12:59 PM - 0 Comments

Back in September 2010, New York City Mayor Michael Bloomberg took a position in favour of building a mosque near Ground Zero and, in so doing, joined a highly emotional debate that swept the nation. He didn’t back away when the controversy became a national one, taking a principled stance as mayor of the city that was the subject of an unspeakable terrorist attack. This was a leadership moment.

Since January 2011, New Yorkers statewide have been treated to a similar series of leadership moments by recently elected Governor Andrew Cuomo, particularly with respect to his negotiations with the state’s unionized employees.  Continue…

The legacy of Pope Benedict XVI

By Brian Bethune - Friday, February 11, 2011 at 7:00 AM - 36 Comments

Franco Origlia/Getty Images

In this story first published in 2011, Brian Bethune considered the ways Pope Benedict XVI was changing the Catholic Church:

It wasn’t supposed to be this way, not according to confounded Vatican watchers. Cardinal Joseph Ratzinger was already 78 years old when he became Pope Benedict XVI in 2005. He was widely seen as the arch-conservative doctrinal enforcer, the sharp spear point wielded by his charismatic rock star predecessor—Joshua to Pope John Paul II’s Moses, in the words of one Jewish scholar. The consensus opinion was that Benedict would provide a quiet, business-as-usual continuance of John Paul’s 27-year reign and, given his age, a brief pontificate that would allow the 1.1 billion-strong Roman Catholic Church time to catch its breath and consider its future options.

No one, it seems, asked Benedict what he thought of the caretaker idea.

From inflaming the Islamic world by quoting medieval anti-Muhammad remarks to welcoming disaffected Anglicans into the Roman fold, becoming personally embroiled in the clerical sex-abuse scandal, endorsing the (sometimes) use of condoms, writing a passage in his newest book exonerating Jews from the charge of killing Christ, and a host of less headline-grabbing initiatives (including a casual acceptance of the theory of evolution), Benedict—as he celebrates his 84th birthday and sixth anniversary as Pope (April 16 and 19, respectively)—continues to be far more active, innovative, and outright newsworthy than expected.

Continue…

Saskatchewan gov't tells commissioners they must perform same-sex marriages

By macleans.ca - Tuesday, January 18, 2011 at 12:20 PM - 10 Comments

The provincial government in Saskatchewan has decided to not appeal a unanimous court decision obliging the province marriage commissioners to perform same-sex marriages no matter their religious objections. Justice Minister Don Morgan says he’d hoped to find a way to accommodate those who oppose gay marriage after the court ruled they could no longer refuse to marry same-sex couples, but concedes his government has “not found any workable options” that would allow for it. “The Court of Appeal has clearly ruled that civil marriage commissioners must perform ceremonies for couples who meet the legal requirements,” Morgan says. “That includes same-sex couples.”

Saskatoon StarPhoenix

Appeals court ruling temporarily blocks same-sex marriages in California

By macleans.ca - Tuesday, August 17, 2010 at 1:21 PM - 0 Comments

An appeals court ruling temporarily blocking same-sex marriages from resuming in California evoked strong responses from opponents and supporters of the state’s controversial 2008 referendum on the issue. On Monday, the appeals court set a fast schedule to hear the merits of the constitutional challenge to Proposition 8, the 2008 initiative defining marriage as only between one man and one woman. Oral arguments will now be held the week of December 6, meaning a decision on whether same-sex couples can legally wed likely won’t come until sometime next year. Opponents of Proposition 8 expressed their disappointment at the ruling, but vowed to continue their fight. Opponents could ask the Supreme Court to intervene on the narrow question of whether to allow the stay to be lifted, but both sides of the debate agree the odds of the justices getting involved at this stage are very slim. Advocates for both sides of the issue say they’re prepared to make their arguments in court when the time comes.

CNN

Same-sex marriage in California: the trap closes?

By Colby Cosh - Friday, August 13, 2010 at 4:23 AM - 0 Comments

Don’t look now, but a twist has materialized in the legal epic of same-sex marriage in California. When U.S. District Court Judge Vaughn Walker struck down the statute implementing the anti-SSM Proposition 8, even sophisticated observers began imagining the familiar capillary process whereby a quarrel migrates upward through increasingly mighty appellate courts.

But wait! Remember what the style of cause was in this lawsuit? That’s right: Perry v. Schwarzenegger.

The plaintiffs were two gays and two lesbians seeking California marriage licenses. The defendants were state officials obeying the dictates of Prop 8, as unwilling legislative automata, from the Governator on down. Those officials have no intention of appealing Walker’s ruling. Indeed, they barely presented a defence of “themselves” in the first place. The advocates of Proposition 8, whose clumsy evidence Judge Walker treated like a speed-bag in his decision, weren’t parties to the suit and didn’t ask to be. They were mere intervenors. So how can they obtain standing to appeal?

This wrinkle didn’t come to the attention of the general-interest press (or to me) until yesterday, when Walker addressed it in his handling of a request for a stay of his decision. The rule is that federal appeal courts, under Article III of the Constitution, can only hear legitimate, non-hypothetical “cases” and “controversies”. This means that intervenors and other observers have to meet a high standard in order to take a decision to U.S. Circuit Court without the aid of one of the original parties—aid that will certainly not be forthcoming in this instance.

Traditionally, in order to gain standing, non-parties have to show that they have suffered a concrete, specific injury as a result of the decision being appealed. Justice Ruth Bader Ginsburg pointed out in 1997 that “An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III.” In no case that reached the U.S. Supreme Court has this happened.

The strangest quirk of all is this: the issue that will decide the feasibility of an appeal by private citizens advocating Prop 8 seems like the same one that came before Judge Walker in the first place. Namely, does the existence of same-sex marriage cause meaningful harm to anybody? Judge Walker, having found that it does not, is naturally skeptical of the intervenors’ ability to proceed. But what’s going to happen if the 9th Circuit turns those intervenors away? Is it quite fair for the judiciary as a class, having thwarted California’s voters, to say “Judge Walker’s ruling that gay marriage doesn’t hurt anybody is impervious to appeal on technical grounds, because gay marriage doesn’t hurt anybody”?

Me, I’m no bleeding-heart small-D democrat. But to the opponents of gay marriage, and perhaps even to unpersuaded moderates, this might seem like sharp dealing. It is one thing for the judiciary to block the will of the majority: hey, welcome to the U.S.A., tenderfoot. This, however, is a case where the judiciary may not only end up obstructing the volonté générale, but elbowing it good and hard in the vitals. Somehow, in California, a majority vote against same-sex marriage will have led directly to the near-permanent entrenchment of same-sex marriage.

This sort of counterintuitive outcome could surely lead to a backlash outside California. Who knows?—it might even create the impetus for an anti-SSM affort at constitutional amendment. The Democratic character of the Congress is a poor assurance of safety for the five (shortly to be six) states which have full, legal gay marriage. That institution still has never won a referendum in the U.S.; its win-loss record stands at 0-31. And the Defense of Marriage Act, which denies nationwide constitutional “full faith and credit” to same-sex marriages, was opposed by just 14 Senators and 67 Representatives not so long ago (1996).

Time and history are on the side of gay marriage. (This is especially true if it represents some sort of fatal Spenglerian decadence.) But it is unclear just how much of each will be needed.

An unlikely conspirator in Prop 8's murder

By Colby Cosh - Thursday, August 5, 2010 at 5:21 AM - 0 Comments

Yesterday afternoon a federal court struck down California Proposition 8, the successful ballot initiative that had banned same-sex marriages in the state. U.S. District Chief Judge Vaughn Walker’s Perry v. Schwarzenegger decision offers a fascinating overview of the American SSM fight. Subjecting Prop 8 to the strict and searching scrutiny that any overt act of state discrimination invites, Walker found the evidence of social harm resulting from gay marriage to be wretchedly meagre, and the evidence of any additional administrative burden on the state to be worse than nonexistent. (In a display of perversity surely more nauseating to many of us than mere sodomy, debt-addled California has been foregoing revenue from marriage licenses issued to same-sex couples and has been maintaining a distinct bureaucracy for the creation and oversight of “domestic partnerships”—a species invented in order to endow gays and lesbians with all the legal difficulties of civil marriage without entitling them to drink from the dregs of its social dignity.)

Walker, having entertained and weighed the evidence of a rational basis for Proposition 8, could find none—none beyond discrimination against gays and lesbians for its own sake, which he characterizes as a “private moral view” that, in the absence of a legitimate government interest, cannot be an appropriate subject of legislation under the due process and equal-protection provisions of the Constitution. So runs the argument. (I’m not a lawyer, but it feels to me like a rather Canadian, Oakes-y one, structurally.)

How airtight is the ruling? One objection that someone like Supreme Court Justice Antonin Scalia would make—for he has made it—is that all laws implement some “moral view”, and could be struck down by a judge the minute some protectable class were found to object to it. Laws against homicide discriminate against murderphiles, and so on. Of course, this isn’t very convincing. Even if you can show that there is such an inherent characteristic as “being a murderphile” and that people in no way choose membership in this class—which, in fact, is an argument you could probably win!—the compelling state interest in preventing murderphiles from murdering is a million times easier to show than anybody’s interest, anybody’s at all, in fretting over the nebulous effects of gay marriage.

This debate is over in Canada, except as a convenient way for kooks to define themselves, because how the heck could you possibly show that absolutely anybody’s life was affected irreversibly for the worse on the exact date of July 20, 2005? I’ve given pro-lifers generous helpings of hassle over the years, but they’ve at least got the “Abortion Stops A Beating Heart” thing to fall back on. If you were picking a similar slogan for the anti-SSM movement, where would you even start? Gay Marriage…Makes A Gorge Rise? Gets A Dander Up? Sticks In A Craw?

The punchline to all this is that Justice Scalia is so forthright, confident, and frankly plain ornery in his views that he inadvertently supplied Judge Walker with a grace note for his magnum opus. Back in 2003, UCLA law professor Eugene Volokh pointed out that the then-fresh Lawrence v. Texas Supreme Court decision annulling that state’s sodomy law featured a little sideshow he thought relevant to the future of the gay-marriage struggle.

In today’s Lawrence decision, Justice O’Connor refuses a general right to sexual autonomy, but concludes that banning only homosexual sodomy violates the Equal Protection Clause—there’s just no rational basis for such discrimination besides “a…desire to harm a politically unpopular group,” she says. What about gay marriage, one might ask her? She anticipates this, by suggesting that “preserving the traditional institution of marriage” is a “legitimate state interest.” “Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”

Justice Scalia derides this—”[Justice O'Connor's reasoning] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,” because “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” [emphasis in original]. But wait: Isn’t that the usual argument of those who criticize the heterosexual-only marriage rule?

In his tirade against “a Court…that has largely signed on to the so-called homosexual agenda”, Scalia gave the game away. Allergic to O’Connor’s cop-out, he argued that there was no need for hetero-only marriage to stand on any basis but “moral disapproval”—and took the extra step, regarded as dangerous by many in his camp, of denying that it could possibly have any other basis. It was an admission, a rather gay-friendly admission really, that any search for objective harms or administrative excuses with which to bash same-sex marriage would be nonsensical and futile.

And lo and behold, in the year of our Lord 2010, the Volokh prophecy has come to pass; Scalia’s grenade has landed right smack in paragraph 21 of Perry v. Schwarzenegger.

Lawrence v. Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting): “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

California judge strikes down gay marriage ban

By macleans.ca - Wednesday, August 4, 2010 at 6:04 PM - 0 Comments

A federal court judge in California has ruled that Proposition 8, banning gay marriage in the state, is unconstitutional. Two years ago, the law against gay marriage won in a statewide referendum, but Vaughn Walker, a George H.W. Bush appointee, declared that the Proposition 8 “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” and is simply based on the unprovable notion that opposite-sex couples are superior to same-sex couples. The ruling, which resulted from a challenge brought by the unlikely team of Ted Olson and David Boies (lawyers who were on opposite sides of Bush v. Gore in 2000), is being appealed to a higher court, and could lead to gay marriage getting a ruling from the U.S. Supreme Court for the first time.

New York

The supposed case against activist judges

By John Geddes - Wednesday, May 5, 2010 at 4:34 PM - 72 Comments

When Charles McVety, president of Canada Christian College, held a news conference on Parliament Hill this morning to raise the alarm about what he apparently views as an arrogantly aggressive Supreme Court of Canada, I paid close attention.

I figured McVety represents social conservative convictions that shouldn’t be underestimated in Ottawa these days, as demonstrated by the Conservative government’s stand against funding abortion with foreign aid dollars.

Speaking on behalf of an alliance of evangelical Christian and family-values groups, he called for Harper to “restore democracy” by filling any vacancies that might open up on the country’s top court with judges who won’t insist on writing their own laws.

Continue…