Forgot to mention this, but if you hadn’t already heard, New Jersey’s gay marriage case was dismissed by a trial court on Wednesday. That’s not so bad, however. This case was never going to be resolved at the trial-court level. Indeed, according to this press release from Lambda Legal:

“More than anything, this ruling propels us forward to higher courts where both sides have always known it will be decided. Today’s ruling speeds the clock up toward the day lesbian and gay couples in New Jersey can seek the protections they need for their families from the state’s high court.”

We’ll see. The New Jersey Supreme Court is one of the nation’s more liberal high courts, and it was this court that ruled that James Dale should be allowed to be part of the Boy Scouts (a decision that was reversed by the U.S. Supreme Court, of course). Then again, the Massachusetts high court is also one of the nation’s more liberal high courts, yet it’s been procrastinating on issuing a decision in the Massachusetts gay marriage case for almost four months now.

So who knows what’ll happen. Exciting stuff, regardless.

Here’s a completely valueless op-ed by Gary Bauer in today’s Washington Post, railing against court-“imposed” gay marriage. (As if courts will force heterosexuals to marry people of the same sex.) The piece contains not a single substantive argument against gay marriage itself, nor does it explain why gay marriage is a “threat” to traditional marriage. It just makes these assumptions. Same old crap. Then again, who’d expect substantive arguments to work in a country where approximately half the electorate supports George W. Bush?

His arguments against federalizing marriage are easily refutable. He states that “in 1862 Congress passed the Morrill Act prohibiting plural marriages throughout the western territories.” Yeah, but federal territories were under the control of Congress. Territories, not states. “In order to join the Union, Utah had to write into its state constitution a prohibition against polygamous unions.” But we’re not talking about polygamy, we’re talking about letting two people who love each other solidify their ties. “Second [um… third?], in 1996, Congress passed the federal Defense of Marriage Act, whereby Congress defined marriage in federal law as the union of one man and one woman.” Yeah, and when did the Supreme Court rule this was constitutional?

Keep yourselves alert.

There seems to be a discrepancy in my media consumption.

Books I’ve read in the last two and a half months, in chronological order:

The Noonday Demon: An Atlas of Depression, by Andrew Solomon

(might be missing one here)

Courting Justice: Gay Men and Lesbians v. The Supreme Court, by Joyce Murdoch and Deb Price

The Ideological Origins of the American Revolution, by Bernard Bailyn

The Age of Federalism: The Early American Republic, 1788-1800, by Stanley Elkins and Eric McKitrick

Virtually Normal: An Argument About Homosexuality, by Andrew Sullivan

On Liberty, by John Stuart Mill

Inferno, by Dante, translated by Robert Pinsky

The Odyssey, by Homer, translated by Robert Fagles

And I’ve just started The Magic Mountain, by Thomas Mann.

Movies I’ve rented in the last two and a half months, in chronological order:

Sweet and Lowdown (1999)

Small Time Crooks (2000)

Liberty Heights (1999)

Waiting for Guffman (1996)

The Curse of the Jade Scorpion (2001)

Nurse Betty (2000)

Pillow Talk (1959)

That Touch of Mink (1962)

What’s Eating Gilbert Grape (1993)

X-Men (2000)

Legally Blonde (2001)

American Pie 2 (2001)

Damage (1992)

New York: Episode 1: The Country and the City (1999)

Meet the Parents (2000)

Bridget Jones’s Diary (2001)

Amelie (2001)

Two Weeks Notice (2002) (that’s bad grammar!)

Indiscreet (1958)

Erin Brockovich (2000)

Notorious (1946)

And last night I watched Kramer vs. Kramer (1979).

I’m not sure what conclusion to draw from all of this, other than lately I seem to enjoy heavy books and funny movies. But it takes longer to read a book than to watch a movie, so one would think I’d be into lighter books and heavier movies.
—–

I’m not a big fan of the Washington Times as it is, but what really annoys me is that whenever the paper carries an article about gay marriage, it puts the word “marriage” in quotation marks, as it does here:

A month after the Supreme Court decision legalizing sodomy and Canada’s recognition of same-sex “marriage,” analysts say an almost casual acceptance of homosexuality pervades the media.

Okay — I might, might be inclined to agree with this policy, to a point. It acknowledges that gay marriage in the United States is currently just hypothetical. But the paper also uses quotation marks to refer to legal Canadian marriages. That’s just obnoxious. It’s implicitly saying, “Canada might have made gay marriage legal, but we still think it’s a ridiculous idea.”

Particularly galling and insulting is the paper’s reference to “the ‘marriage’ of Deb Price and Joyce Murdoch in Toronto last month.” (Price and Murdoch, incidentally, are the co-authors of the book that Ralph Nader sent me.)

Price and Murdoch don’t have a “marriage.” They have a marriage. They’re legally married. Just because the Washington Times doesn’t like it doesn’t make it any less legal. Nice try though.

What’s also annoying — no, just plain awkward — is the paper’s refusal to use the word “gay” unless it’s embedded in a quotation. I’m sorry — it may not be technically incorrect, but it’s really weird to refer to “Will & Grace” as NBC’s “homosexual-themed sitcom ‘Will & Grace.'”

They really need to lighten up at that paper.

“In other words, the Supreme Court might never be forced to declare gay marriage a constitutional right under the due process reasoning of Lawrence. Rather, the majority justices can sit back, let momentum from their decision take hold in the states, and then use a relatively obscure passage of the Constitution to nudge the ball across the line.”

– from A More Perfect Union: Will Lawrence Lead to Gay Marriage?
—–

Three weeks ago, in anticipation of the Lawrence decision, I bought a book called Courting Justice: Gay Men and Lesbians v. the Supreme Court. I finshed it two weeks ago. It was engrossing, and it made the victory in Lawrence that much sweeter.

Today my book from Ralph Nader finally arrived.

Yeah, I think you know the rest of the story.

Same book.

Inside the front cover it says,

TO [me]

FOR JUSTICE

RALPH NADER

And then in smaller letters:

GOOD LETTER IN NY TIMES

One step ahead of ya, Ralph. But thank you nevertheless.

“First of all, this decision isn’t anywhere nearly as dirty as the Starr Report. If the Supreme Court is going to legalize civilian sodomy across the nation, and maybe pave the way for military sodomy as well, the least it could do is enumerate in painstaking detail all the acts that are now permitted.”

(more here)
—–

Yesterday’s decision has already had a concrete effect:

“In one of the first consequences of its landmark ruling on gay rights on Thursday, the Supreme Court today set aside the lengthy prison sentence imposed on a gay Kansas teenager for having had sex with a younger boy.”

If the man had had sex with a 14-year-old girl, he would have gotten probation, but because it was a 14-year-old boy, the guy was sentenced to 17 years in a correctional facility. The Supreme Court today basically said “I don’t think so,” and sent the case back down today “for further reconsideration in light of Lawrence v. Texas.”

Awesome.

From Law.com: U.S. Supreme Court Strikes Down Law Banning Gay Sex.
—–

New York Times Supreme Court reporter Linda Greenhouse’s article about the sodomy decision. Also from the Times: Gays Celebrate, and Plan for Broader Rights.

And the fact that this happened on the same day is just too weird to be true. I guess he just couldn’t take the news.
—–

Lambda calls the Lawrence decision “the most significant ruling ever for lesbian and gay Americans’ civil rights.”

(Check out Lambda’s cool splash page today.)

“Today, the Supreme Court corrected one of its gravest mistakes. This ruling removes the terrible shadow cast over the gay community by the Supreme Court’s destructive and misguided decision 17 years ago.”

Bowers v. Hardwick is in the dustbin of history.
—–

The Supreme Court has struck down the Texas sodomy law!

More later!

(The opinion will be posted here.)
—–

In approximately 11 hours, we will know the Supreme Court’s decision in the sodomy case. I’m on tenterhooks here. (I used to think the word was tenderhooks, but it’s not.) I’m interested in more than just the result; I’m really looking forward to reading the opinions, no matter how it turns out.

Unfortunately, I have a meeting out of the office at 11:00 tomorrow morning, which means I’ll have to leave my office by about 10:40, which means that although I’ll probably have time to learn the result and quickly post something online (or maybe not), I won’t get a chance to really read the opinions until later in the day. I hope the PDF files are downloadable somewhere by 10:30, so I can print them out and take them with me!

If I were forced to guess, I’d say that the Court is going to strike down the law using the “rational basis” equal protection argument… but I really have no idea what’s going to happen.

And I hope to God nobody retires.

There is nothing in American politics quite like the announcement of a Supreme Court opinion. The justices give no hints as to what opinions they will choose to announce on any given decision day; nor, other than in oral arguments, do they give any hint as to how they will decide a particular case. Other political events have warnings: we know what day Congress will vote on a particular bill, and the only mystery in such an event is the number of votes on a yes-or-no question; members of Congress do not write treatises on why they voted a particular way on a particular bill. Even summaries of State of the Union addresses are provided in advance.

Supreme Court opinions descend upon us from out of the blue. Nobody, not even a veteran Supreme Court reporter, knows what an opinion will say. Furthermore, the Internet has put virtually everyone on an equal playing field; those who are in the courtroom when the justices announce their decisions have a slight head start, as there is still no live TV or radio coverage of the announcements, but no longer do we have to rely on reporters and analysts to interpret the decisions for us, for they are posted on the Web mere minutes after they are announced; a written opinion will appear here, for instance, while other opinions are still being read from the bench. At 9:59 in the morning, an opinion is still a mystery, but by 10:10, it can be read and analyzed and parsed all over the world. All of us can download the opinions (and the dissents and concurrences, too), in either HTML or, more spectacularly, in PDF, and read the words for ourselves. I’m still blown away by the fact that on the morning of June 23, 2003, I can hold in my hands a Supreme Court opinion dated June 23, 2003. Linda Greenhouse doesn’t get to read it any sooner than the rest of us do.

I still hold a childlike sense of wonder that such things are possible today.
—–

The Supreme Court will announce its decision in the gay sodomy case on Thursday morning.

Will we get reamed by the Supremes, or not? Stay tuned.

(Sorry, I’d been waiting a long time to use that one and I just couldn’t wait any longer.)

There are three possible outcomes to the Texas gay sodomy case. Which outcome would be the best for gays?

Obviously, the worst result for gays would be if the Supreme Court upheld the Texas Homosexual Conduct law, affirming the status quo. States would continue to be free to outlaw gay sodomy and discriminate against gays. We’d gain nothing. The power of Romer v. Evans (which struck down an anti-gay state amendment in 1996 on the basis that “animus” was not a good enough reason to discriminate against gays) would be weakened, or at least greatly circumscribed.

But what if the Supreme Court strikes down the law, which is very possible? It can do so on one of two bases. Which basis would be the best for us?

One, the Court could strike down the law on the basis of privacy. This would strike down the anti-sodomy laws in all of the 13 states that still outlaw sodomy for everyone. (Note that “sodomy” means not just anal sex but also oral sex.)

Two, the Court could strike down the law on the basis of equal protection. This would strike down the anti-sodomy laws in the four states that ban only homosexual sodomy (Texas, Oklahoma, Kansas and Missouri), but it would leave in place the laws in the nine remaining states that outlaw all sodomy.

Which would be better for gays: the privacy basis or the equal protection basis?

If the Court used the privacy argument, it would mean, simply put, that the government would have to stay out of our bedrooms from now on. Adult consensual sex would now be off-limits to governmental regulation. Since there would be no more sodomy laws, there would no longer be an excuse to brand gays as criminals. This would be wonderful.

If the Court used the equal protection argument, nine states’ sodomy laws would be left standing. In those nine states, gays could still be branded as criminals. This would not seem to be as good as the privacy argument.

But maybe the equal protection argument would be the best for gays? Maybe it would be one more precedent to show that governmental entities can’t discriminate against gays? After all, striking down the law on the basis of privacy would sidestep this question, but the equal protection basis would confront it directly, right?

Not necessarily. It’s not likely that the equal protection argument would further bolster the argument that gays should be a protected class under the Constitution. Currently, women and blacks are considered “protected classes” under constitutional equal protection theory; because women and blacks have a history of being oppressed, a governmental entity must have a pretty damn good reason for discriminating on the basis of race or sex, and such laws are subject to “strict scrutiny” or “heightened scrutiny” by the courts. The Supreme Court has never stated that gays are a protected class; this means that if a governmental entity wants to discriminate on the basis of sexual orientation, it need only come up with some rational-sounding basis for the law. It doesn’t have to be a particularly good reason; it just has to have some semblance of logic to it. (In comparison to “strict scrutiny” and “heightened scrutiny,” this is known as the “rational basis” test.)

In their brief to the Supreme Court, Lawrence and Garner’s lawyers (who want to get rid of the sodomy laws) haven’t gone so far as to argue that gays should be a protected class under the Constitution or that laws that discriminate on the basis of sexual orientation should be subject to higher scrutiny. Rather, they have argued that even under the more lenient “rational basis” standard, Texas’s Homosexual Conduct law does not pass muster. Texas has said that the purpose of the law is to uphold standards of morality, to express the moral views of the people of Texas, et cetera. Lawrence and Garner’s lawyers have argued that this is just not a legitimate state interest.

This is the argument that worked in Romer, which was decided 6-3, and the exact same nine justices sit on the Court now, so it has a good chance of working in the Texas case. Presumably, if the Court uses the equal protection argument to strike down the law, this will be the basis on which it does it.

Of course, it’s always possible the Court could go out on a limb and use the equal protection argument in this case to enshrine gays as a protected class, but I wouldn’t bet on it.

The best result for gays would probably be if the Supreme Court struck down the law on the privacy basis. Another terrific result would be if the Court struck down the law on the equal protection basis and stated for the first time that gays are a protected class.

Which means that the Court probably won’t use either argument. The Court likes to avoid controversy.

If I had to guess, I’d say that the Court will play it safe and will strike down only the four sodomy laws that discriminate against gays, using merely the “rational basis” version of the equal protection argument — letting other nine states’ sodomy laws stand and still leaving gays as an unprotected class. It’s not the result I’d most prefer, but it’s my guess.

But stranger things have happened, so you never know.
—–

More on gay sodomy:

An opinion piece from a Virginia newspaper discusses one of the harsher consequences of anti-sodomy laws: in the 13 states that still have them, such laws are sometimes used to presumptively brand gays as criminals. In one example (Bottoms v. Bottoms, a name I ridiculed last week), the Virginia Supreme Court in 1995 allowed a child to be taken away from her lesbian mother, in part because “conduct inherent in lesbianism is punishable as a Class 6 felony.”

This is important, people.

[via SCOTUSblog]