After 17 months of deliberation, the Washington Supreme Court will issue its same-sex marriage ruling tomorrow at 8:00 a.m. (That’s 11 a.m. East Coast time.) See here, here.
Pins and needles.
Tag Archives: links
Optimism on NJ Gay Marriages
From Gay City News: Optimism as Jersey Awaits Marriage Ruling. The ruling will likely come by mid-October, when the current chief justice reaches the mandatory retirement age. In support of a prediction of a favorable marriage ruling, the head of Garden State Equality cites the leanings of its Supreme Court (which issued a pro-gay ruling in Boy Scouts of America v. Dale before it was overturned by the U.S. Supreme Court), prior case law (a New Jersey court was the first in the U.S. to find a right to joint adoption by same-sex couples), and the strength of the state constitution’s equal protection clause. It’s a really interesting article that gives one (cautious) hope.
The freedom to marry: Keep dancing
The freedom to marry: Keep dancing | Advocate.com
Evan Wolfson, executive director of Freedom to Marry, has a great piece online about last week’s marriage decision in New York. An excerpt:
In fact, the plurality’s strained rationalizing of the discriminatory exclusion fails on its own terms.
New York’s ruling came just a week after the Arkansas supreme court unanimously rejected precisely the same proffered rationale; unlike the four-member majority of New York’s highest court, the judges in Arkansas (!) instead relied on the evidence provided by experts in child welfare. That evidence was, of course, available to the New York judges. Institutions such as the American Psychological Association, the National Association of Social Workers, the American Psychiatric Association, the Association to Benefit Children, and the American Academy of Matrimonial Lawyers, among other authorities, submitted briefs to the court calling for an end to marriage discrimination in the interest of children and families.
And the very week of the New York decision, the American Academy of Pediatrics weighed in once again with an authoritative statement titled “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children†(see the academy’s full analysis on www.freedomtomarry.org). The nation’s kids’ doctors know best—and here’s what they said:
“There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.â€
Not only was this evidence, this kind of careful consideration of what truly helps couples and kids missing from the New York plurality opinion, so was any actual logical connection between the ends ostensibly sought (promoting stability, helping children) and the means chosen (denying that stability and help to others).
“The silver lining of the decision,” he writes, “is, ironically, its thinness, illogic, and refusal to consider the lives of real people, including gay families, and the real meaning of the denial of the human experience that is marriage. While the dissent makes a convincing legal and moral case, the plurality and concurring opinions will present no impediment to a court or decision-maker wanting to do what is right and willing to apply real scrutiny to a constitutional and moral wrong.
LA Times Editorial
The Los Angeles Times today has an editorial: “Setback for marriage justice – New York and Georgia courts will be on the wrong side of history of gay marriage.”
Noting that “an important function of marriage is to create more stability and permanence in the relationships that cause children to be born,” Judge Robert S. Smith wrote that the state could “offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.” Never mind that childless heterosexual couples also receive legal benefits from civil marriage — or that many gay couples are raising children.
It took the Supreme Court until 1967 — 1967! — to strike down odiously racist anti-miscegenation laws. Someday we’ll look back on the anti-gay-marriage hysteria with the same revulsion. Until then, with a high court seemingly disinclined to address marriage, states such as California should take the lead.
Robles Analysis I
Today, in Hernandez v. Robles, New York’s highest court, the Court of Appeals, ruled that the state constitution does not require extending marriage to same-sex couples. The court didn’t even order the legislature to provide same-sex couples with civil unions. The decision was 4-2; there are seven judges, but one did not participate in the case because his daughter is involved in same-sex marriage litigation in another state.
Three opinions were issued: the opinion of the court, a concurring opinion agreeing with the result, and a dissent. This post summarizes and critiques the main opinion of the court – in layman’s terms, I hope.
The opinion of the court was written by Judge Robert S. Smith and joined by two other judges. (The other day, Gay City News stated that Judge Smith “is considered an iconoclastic conservative and libertarian and he aggressively questioned both sides in this case, displaying little patience for arguments that procreation wasn’t central to marriage and demanding more specific ‘studies’ on how children fare in homes headed by gay parents versus heterosexual parents.”)
1. Rational Basis Review
Bizarrely, the opinion of the court puts the cart before the horse. Normally, a court first explains what type of analysis is appropriate, and then analyzes the case. Here, the court first analyzed the case and then explained why the level of analysis was appropriate. The court gave the legislature’s limitation on marriage the lowest, most deferential level of scrutiny possible, and only afterwards did it explain why this was appropriate. Apparently Smith thinks a higher level of scrutiny is so patently inappropriate that it’s not even worth first explaining why.
Under this low-level review, a court basically accepts a legislature’s decision if the legislature gives a basically rational reason for it. Here, the court stated that the legislature could reasonably conclude that “for the welfare of children, it is more important to promote stability… in opposite-sex than in same-sex relationships” because heterosexual sex can naturally lead to the creation of children while homosexual sex cannot. The court also stated that “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” The court cited “intuition and experience” as supporting this argument.
(I never realized that “intuition” was a legal standard; as for “experience,” the court doesn’t cite any.)
Regarding studies showing that children raised by same-sex couples fare no worse than children raised by opposite-sex couples, the court stated that “the studies on their face do not establish beyond doubt that children fare equally well in same-sex and opposite-sex households. What they show, at most, is that rather limited observation has detected no marked differences. More definitive results could hardly be expected, for until recently few children have been raised in same-sex households, and there has not been enough time to study the long-term results of such child-rearing.” The court states, “In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home.”
(I think that calling something “common sense,” with no further explaination, is an evasion of argument – it’s really no explanation at all.)
The court discounts the precedent of Loving v. Virginia, the U.S. Supreme Court case that struck down bans on interracial marriage. The court states that Loving was decided in the context of a long history of racism, but that the analogy doesn’t hold because opposition to same-sex marriage isn’t necessarily based on irrationality, ignorance or bigotry. (Or so the court states.)
2. Marriage as a Fundamental Right
Having dispensed with its analysis, the court next take a step backward and states why it finds low-level scrutiny of the legislature’s decision appropriate. Under constitutional theory, a higher level of scrutiny would be required if a fundamental right were at issue or if a particular class of people was being denied equal protection under the law.
First the court explains why it does not believe a fundamental right is involved. It states that “whether the right in question is ‘fundamental’ depends on how it is defined.” Crucially, the court states:
The right to marry is unquestionably a fundamental right… The right to marry someone of the same sex, however, is not “deeply rooted”; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.
This definition of the question is vital. One of the main thrusts of Lawrence v. Texas, the U.S. Supreme Court sodomy case, was that the court in the case it overturned, Bowers v. Hardwick, had defined the right at issue too narrowly, as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy,” when it should have analyzed the issue more broadly as whether adults have a fundamental right to engage in private, consensual sexual conduct of their choosing.
Incredibly, the court in Hernandez v. Robles specifically acknowledges Lawrence’s admonition to frame the question properly and then goes ahead and frames it incorrectly. It does so by engaging in circular reasoning: it states that the question should be narrowly framed because same-sex couples are seeking “access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples.” But the court can’t decide whether a rational-basis analysis is appropriate without first deciding whether a fundamental right is at issue. Oops.
3. Equal Protection
Under equal-protection analysis, a level of scrutiny higher than rational-basis scrutiny is appropriate if certain classes of people are being disadvantaged by a law. Courts have long held that laws creating certain classifcations merit higher scrutiny, primarily those based on race and those based on sex, along with a small number of others.
The court dismisses the notion that the same-sex marriage ban discriminates on the basis of sex, because the law does not disadvantage one sex over the other.
I generally agree. Sex discrimation is a weak argument in this field. However, one can argue that inter-racial marriage bans were unconstitutional despite ostensibly treating blacks and whites the same. On the other hand, the purpose behind such bans was to “keep the white race pure,” whereas there’s no analogous purpose here to privilege one gender over another.
Next, the court discusses classifications based on what it repeatedly calls “sexual preference.” (The use of a term that a great many gay people dislike shows that the majority judges have a tin ear for gay rights issues.) The court finds that such discrimination is not subject to heightened scrutiny here, because the law deals with characteristics relevant to an interest that concerns the State – namely, marriage. “A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.”
The court uses this as a pivot to return to rational-basis question. The court dismisses the argument that some same-sex marriage couples raise children, stating that the legislature’s decision was nevertheless rational. The court also dismisses the argument that some opposite-sex couples do not raise children, stating that “limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.” That’s generally true, although the dissent states that the legislature could limit marriage to couples of fertile age (but the dissent doesn’t address fertile couples who just don’t want to have children).
4. Conclusion
The court concludes with a hope that “the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.”
That last sentence rankles me. Minority rights should not be decided democratically. Then again, the majority of the court apparently doesn’t see this as a minority rights issue.
The concurring opinion is worse; I’ll get to that next.
Stonewall
Thanks to Joe for the reminder that tonight is the anniversary of the beginning of the Stonewall riots. Joe has reprinted a contemporary New York Post story about the riots.
As much as Stonewall was a watershed in the history of the American gay rights movement, it’s important to remember that gay activism didn’t begin with Stonewall. It had been going on for at least 20 years before then: Harry Hay and the Mattachine Society; ONE, Inc, which brough a case all the way to the U.S. Supreme Court about obscenity and the postal service; and Frank Kameny, who is still alive and who organized the first public gay protest, a picket line in front of the White House in April 1965. John Loughery, in his terrific history of American gay life in the twentieth century, The Other Side of Silence, describes Stonewall as “a culmination rather than an isolated uprising.” Nevertheless, Stonewall marked a new assertiveness – not just in gay activism, but in gay culture and gay people’s sense of themselves.
Loughery also writes:
The mythology of the riot… in its crudest form, implies that gay life in America was immediately and dramatically transformed one summer night. In reality, most gay men and lesbians in the United States did not hear anything about Stonewall until years later, if only because the media outside New York City did not cover the riot.
He says that it did get almost immediate coverage in New York, though. While the mainstream New York Times gave it only scant mention in a short article in the back of the paper under the headline “Four Policement Hurt in Village Raid,” the Village Voice gave it in-depth front-page attention.
Out of curiosity, I looked for Stonewall coverage in the Complete New Yorker and found a Talk of the Town piece in the issue of July 11, 1970, describing the first gay pride march in the city, held in commemmoration of the first anniversary of the riots. It begins, “On June 29 [sic], 1969, city police raided the Stonewall Inn, a well-known gay bar on Christopher Street, in Greenwich Village. A gay bar is a bar frequented by homosexuals.” (Not sure if that’s supposed to be tongue-in-cheek or not.) One man at the beginning of the parade route is quoted as saying, “Homosexuals are very silly. They congregate in certain areas and then spend all their time walking up and down the street ignoring each other.” (Sounds like a gay bar to me.) Later on, one marcher says, “Would you believe it? It looks like an invading army. It’s a gay Woodstock. And after all those years I spent in psychotherapy!”
Gay men still go to psychotherapy, but at least they’re no longer in it to try to “cure” themselves.
Thank you, Stonewall rioters.
David Addington
There’s a great piece in this week’s New Yorker about a man everyone should know about: David Addington, Dick Cheney’s right-hand man. (The piece isn’t online, unfortunately, but there’s this Q&A with the author that effectively summarizes it.) Addington is an extremist bully who thinks the President can do anything he wants in a time of war and that the two other branches of the federal government can do nothing to stop it. Worse, he essentially controls the legal aspects of the so-called “war on terror.” He was responsible for creating the so-called military commissions (which even many high-ranking military officials disagre with, and the constitutionality of which the Supreme Court will decide this week), and he has taken presidential signing statements, a dicey concept to begin with, to an unconstitutional extreme. In the 1980s, in Alice-in-Wonderland fashion, he argued that rather than the Reagan Administration overstepping executive authority in the Iran-Contral scandal, Congress overstepped its authority in prosecuting people in the scandal.
Adding to his mystique, David Addington refuses to be interviewed or photographed. But one of the many people that Jane Mayer interviewed for her article did indeed refer to him as “a bully,” and another said that in meetings discussing what to do about presidential power after 9/11, he was “very insistent and very loud” and got his way.
This man is scary.
One hopes that if the next President is a Republican, he or she will be less foolish than George W. Bush and won’t allow things like this to happen, or people like this to work in the White House. I’m (rightly or wrongly) optimistic that this will be the case, that George W. Bush is just a horrific aberration in American history instead of the harbinger of a new era.
IENJTFPS
I’ve begun working with a career counselor, and she thought it would be helpful for me to take two standardized tests: the Strong Interest Inventory, which evaluates your career interests, and the MBTI, which evaluates your personality type along four dichotomies: introvert (I) vs. extrovert (E), sensing (S) vs. intuiting (N), thinking (T) vs. feeling (F), and judging (J) vs. perceiving (P). I’ve taken abbreviated forms of the MBTI in the past, twice, a long time ago: the first time I came out INTJ, the second time INFP.
I just took the full MBTI for the first time, and it’s so frustrating. It’s a bunch of theoretical questions followed by two alternatives. For instance, do you prefer a schedule or do you prefer to be spontaneous? Do you usually introduce people at parties or do you usually get introduced? Do you prefer a boss who is good-natured and inconsistent, or one who is sharp-tongued and logical? (Can I pick good-natured and logical but also compassionate?)
I had a hard time with many of the questions. I don’t think I have a consistent personality type. I’m a ball of contradictions. Sometimes I want to be alone and sometimes I want to be around other people. I’m more social than I used to be, but it was something I had to learn. Am I more open or more reserved? It depends on how I’m feeling. Do I prefer a schedule or do I prefer to be spontaneous? It depends. Does my head usually rule over my heart or vice versa? No clue. My head and my heart are in constant conflict. I think too much and I feel too much. Do I prefer logic or emotion? Coldly logical people bother me, but I don’t like mawkish sentiment either.
Grrr.
You know, if I were on the Supreme Court I’d be Justice Kennedy. No, O’Connor. Or maybe Breyer.
Granted, this test doesn’t determine the outcome of my life, or anything, really. It’s just supposed to be insightful. But it still pisses me off because it tries to pigeonhole me into categories, and I don’t like to be pigeonholed. I mean, look. Once I came out INTJ and once INFP. And on the I/E questions 10 years ago, I came out almost equally introverted and extroverted.
Anyway, I’ll see how I wind up scoring this time. It will be really interesting. Or maybe not.
FAIR v. Rumsfeld
Students from Lambda, Harvard Law School’s gay rights organization, convened Saturday at the first annual Gay and Lesbian Legal Advocacy conference to map out the course of gay rights activism following the recent Supreme Court ruling upholding the Solomon Amendment.
Whah? The case, FAIR v. Rumsfeld, was not some big setback for gay rights. It wasn’t even a gay rights case at all; it was about whether law schools have the First Amendment right to deny military recruiters equal access to their facilities without losing federal funds. Yes, the reason the law schools wanted to ban military recruiters was because of “don’t ask, don’t tell,” but the case wasn’t about the validity of “don’t ask, don’t tell” itself. The Court ruled, in fact, that the law schools could use their free-speech rights to express their opposition to “don’t ask, don’t tell” as loudly and as often as they wanted.
Anyway, Congress was the body that passed that legislation, not the military, so it was pointless for law schools to try to pressure the military by banning its recruiters.
There, I’ve wanted to get that off my chest for a while.
Lithwick on Hamdan
I love Dahlia Lithwick. (You can see all her Slate columns here – I have it bookmarked so I can see whenever she has a new one.) Today she provides an entertaining summary of yesterday’s Supreme Court arguments in Hamdan v. Rumsfeld. Apparently Justice Souter got uncharacteristically angry. As for another justice, Lithwick writes, “What the hell has gotten into Justice Antonin Scalia? Between his extracurricular pronouncements on the arguments in this case (and I urge you to listen to the whole speech yourself) and his extracurricular hand signals last weekend, nobody is quite sure what has come over the man. He is ever more the Bill O’Reilly of the High Court.”
As for the case itself, the issue is (1) the legality of military tribunals set up by the executive branch that it claims are justified by “the war on terror,” and (2) whether the Court is even allowed to hear the case at all, because after the Court granted review of the case, Congress passed a law removing the issue from the Court’s jurisdiction. But (and I don’t know if I totally have this right) because the issue involved habeas corpus, the right of an arrestee to challenge his/her detention, it’s not clear whether Congress was allowed to strip the Court’s jurisdiction in the way it did.
I’m kind of confused here. I guess I would be less confused if I read the briefs. But who has time?
Marital Blitz
Really interesting piece on long-term same-sex marriage strategy.
Despite the fact that Americans keep voting for DOMAs, there is no anti-gay backlash…. [In 2005,] Illinois and Maine passed anti-discrimination laws. California’s legislature voted to gender-neutralize marriage — a historic first — despite Governor Arnold Schwarzenegger’s veto. Massachusetts’ legislators upheld marriage equality. Connecticut’s legislature passed a civil unions law. Cincinnati, Indianapolis, and Topeka — hardly liberal bastions — passed LGBT antidiscrimination laws; Virginia’s governor and Salt Lake City’s mayor extended health-insurance coverage to government employees’ same-sex domestic partners; and Alaska’s Supreme Court unanimously ruled that — despite the state’s DOMA — local governments must offer equal benefits to employees’ married spouses or same-sex partners. That’s why the religious right is so eager to run anti-marriage measures. “We were so close to winning completely on basic nondiscrimination that the discussion had to go to this completely new level in order to shock and create pause among the general voters,†said Thalia Zepatos, a National Lesbian & Gay Task Force field organizer in California….
The 2004 marriage initiatives and the subsequent Democratic gay-bashing had a salutary effect on LGBT organizations. “People had a strategic epiphany that [victory] wasn’t going to come in an avalanche,†said Evan Wolfson, founding director of the national group Freedom to Marry. “We would need a fifteen-year plan, not a two-year plan. That sunk in in a much more grounded way, with a sober awareness that it would be much longer and harder.â€
The 2004 votes woke the community up to the fact that the LGBT legal superheroes (Lambda Legal Defense and Education Fund; Gay & Lesbian Advocates & Defenders; National Center for Lesbian Rights; and ACLU’s Gay Rights Project) could not defend their marriage gains. “[W]ith all the brilliant legal scholars that we have — and there are many — for whatever reason, there’s been a blind spot on the political side.”
The answer:
By the year 2020 (give or take five years), the goal is for 10 states to have full-marriage equality; 10 states to have civil unions or the equivalent; 10 states to have nondiscrimination laws and be repealing (or peeling back the effects of) their anti-gay marriage amendments; and the final 20 states to show progress.
You know the fortunate thing about state DOMAs? The people created them; with enough education and political effort, the people can also get rid of them. It will happen. Over time.
Lewis v. Harris Webcast
Tomorrow, starting at 10 a.m., the New Jersey Supreme Court will hear oral arguments in the state’s gay marriage case, Lewis v. Harris. And you, yes, you, will be able to view a live webcast of those oral arguments here.
Spineless Democrats
I love the first link. Read the whole thing. Here are the first few paragraphs.
Effective immediately, the Democrats will be known as the lyin’-ass boyfriend party – the perfect date for progressive voters looking to be stood up, bullshitted blind, or left holding the tab.
For five years now it’s been “Please baby, baby, baby, please! I’m sorry I was a no-show last time, but hey, that was because I was working overtime to save up to do something extra special for next time, which is the really big event – right, baby?”
Last April, when the Democrats backed away from filibustering extremist appeals court nominees, it was, “Don’t you fret, baby. We’re not going to go to the mat over small fry like Owen, Pryor, and Brown because we’re saving the filibuster for the big one – you know, the Supreme Court, baby.” Months later, Democrats folded rather than fight John Roberts, the young-ish yes man with a penchant for executive privilege and a wife who used to head an anti-choice organization. After all, they said, they needed to save their energy, and the filibuster, for the next Supreme Court nominee, who would undoubtedly be worse.
Well, baby, the moment of truth has arrived. It’s Alito-time, and the lyin’-ass boyfriends are backpedaling again. Why aren’t they going to raise a ruckus this time? Aw, baby… the filibuster is just so darned hard to use with only 45 senators! And what’s the point of trying to do anything until we’ve recaptured the Senate or the White House?
I have terrible news for the Democrats: being the minority party is not their real problem.
As I said: continue reading.
The Basic Case Against Alito
By all accounts he is a low-key, pleasant man who respects disagreement and does not insult his colleagues on the bench. He is a cautious craftsman who takes small discrete steps towards his objectives rather than daring leaps. Where the law is hard and clear, he does not defy it or try to amend it judicially – though of course as a Supreme Court justice he will have scope to modify even well-settled law.
But wherever there is running room – opened up by gaps in application, conflicts in precedents, ambiguities in statutes – Alito is an activist who works steadily to push the law well beyond conventional boundaries of precedent.
The article delves into the issue of Alito’s views on executive power. Indeed, that issue seems to be a big one in the Alito hearings. But while Alito would likely be on the Court for at least 25 years, Bush has only three years left in office; today’s current events will eventually fade away. Or will they? Until recently, abuse of executive power hadn’t been a big issue since the Nixon years. It could be that the issue is just inherent in Bush’s and Cheney’s style of management and will disappear when the next president (either Democrat or Republican) comes to power with his or her own people and governing philosophy. On the other hand, fear of terrorism is probably going to be with us for a long time, even after Bush leaves office, and the presidency changes people. So executive power could continue to be a big issue from now on. It bears looking at – along with all the other issues, of course.
Lewis v. Harris Oral Arguments
Press release: The New Jersey Supreme Court has scheduled oral arguments in Lewis v. Harris, the state’s same-sex marriage case, for February 15, 2006. That means a decision could come as early as this summer.
Roberts’s First Opinion
Chief Justice Roberts issued his first Supreme Court opinion yesterday. Here’s a stylistic analysis of the opinion. My favorite part of the analysis:
For anyone who attended the oral argument in the case, Wednesday’s decision also shows that Roberts is unafraid of standing up to Justice Antonin Scalia. One of the relevant precedents in the case was a 1968 case called Newman v. Piggie Park Enterprises. When one of the lawyers at argument referred to the case by the shorthand Piggie Park, Scalia interrupted and said, only half-jokingly, “You know, it really would improve the dignity of this Court if we referred to Piggie Park as Newman.”
Without apology, Roberts referred to the case throughout his opinion Wednesday as Piggie Park.
Alito?
Both SCOTUSBlog and Confirm Them predict that the new Supreme Court nominee will be Samuel Alito of the Third Circuit, a judge whose chambers are in Newark, New Jersey – and not too far from my office! And I worked in his building one summer during law school when I interned with a federal district judge in Newark. Alito is nicknamed “Scalito” because his views apparently resemble those of Scalia, but apparently he’s not an ass like Scalia is.
Article III Groupie thinks it could be Luttig. She thinks Alito could wind up as the Edith Clement of this round to John Roberts’s Luttig. We’ll see.
I was thinking it might be McConnell, but apparently he’s not under consideration because conservatives might not be totally comfortble with him on Roe and other issues.
This could be announced Monday.
Candle in the Wind
The blog of the #1 smartest President ever’s #1 pick to be the next Associate Justice of the Supreme Court…update, EXCEPT NOT ANYMORE”
Love the candle.
Lewis v. Harris Supreme Court Brief
Here is Lambda Legal’s New Jersey Supreme Court brief in Lewis v. Harris, that state’s same-sex marriage case. Teh brief was filed on Friday.
Limon v. Kansas III
Awesome. “Kansas cannot punish illegal underage sex more severely if it involves homosexual conduct, the state’s highest court ruled unanimously Friday in a case watched by national groups on both sides of the gay rights debate.”
This is particularly poignant. The day after it decided Lawrence v. Texas in June 2003 – when we were all giddy and high on our newfound nationwide freedom – the U.S. Supreme Court, in what seemed to be an afterthought, sent a case back to Kansas in which a teenage boy had received a 17-year jail sentence for underage gay sex with another minor. If it had been heterosexual sex, the guy likely would have gotten probation or, at most, just over a year in jail. The U.S. Supreme Court sent the case back “for further reconsideration in light of Lawrence v. Texas.” In other words: Hint hint. Unfortunately, the Kansas court either didn’t get the hint or blatantly chose to ignore it, because in February 2004, that court upheld the 17-year jail sentence.
Well, finally, justice has been done, because the Kansas Supreme Court has reversed the lower court. Here’s the ruling and here’s a summary.
Took long enough. Justice sometimes does happen, given enough time.