Religious liberty and marriage

From one of the amici briefs to the Supreme Court: my emphases

Significant religious liberty issues will  indeed  follow in the wake of same-sex civil marriage. But it  is not an appropriate response to prohibit same-sex  civil marriage in order to  eliminate every risk of  possible  impositions  on religious liberty.  No one can  have a right to deprive others of  their important  liberty as a prophylactic means of protecting his own.  Just as one’s right to extend an arm ends where  another’s nose begins, so each claim to liberty in our  system must be  defined in a way that is consistent  with the equal and sometimes conflicting liberty of  others. Religious liberty, properly interpreted and  enforced, can protect the right of religious organizations and religious believers to live their own lives  in accord ance with their faith. But it cannot give them  any right or power to deprive others of the corresponding right to live the most intimate portions of  their lives according to their own deepest values

It  goes on to argue for robust religious freedom exemptions.

NOtorious RBG nails it

Everyone's favorite SUpreme COurt justice makes the point:

[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

Justice Ginsburg’s point was that, until surprisingly recently, the legal institution of marriage was defined in terms of gender roles.....So American marriage law, and the English law that it was derived from, presumed that the wife was both financially and sexual subservient to the husband. In a world where marriage is defined as a union between a dominant man and a submissive woman, each fulfilling unique gender roles, the case for marriage discrimination is clear. How can both the dominant male role and the submissive female role be carried out in a marital union if the union does not include one man and one woman? This, according to Justice Ginsburg, is why marriage was understood to exclude same-sex couples for so many centuries.

But marriage is no longer bound to antiquated gender roles. And when those gender roles are removed, the case for marriage discrimination breaks down.

Now, we wait.

Segregation now, segregation forever

You may recall that the Southern States did not take kindly to the Supreme Court's civil rights decisions.  They barred the schoolhouse door to prevent integration.  They fervantly promised that segregation would live on.  They contested the supremacy of the Federal Constitution over their own laws.

And, here in 2015, they are doing the same thing.  The NY Times

Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses.

Political figures including Mike Huckabee are actively calling for  states to refuse to recognize the Federal Courts' decisions.


But history tells us they haven't a leg to stand on. Back in 1958, Arkansas governor Orval E. Faubus claimed that he was not bound by Brown v. Board of Education. He sent the National Guard into Little Rock to block school integration.  From THe Atlantic:

The Little Rock dispute brought federal troops to Central High. It led to the landmark opinion in Cooper v. Aaron, the only one in history signed by all nine Justices, which proclaimed that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and that Brown “is the supreme law of the land.” All state officials, the Court noted, take an oath to support the federal Constitution. “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

So, in response to the efforts to nullify marriage equality,

The answer to this argument is the same today as it was in 1958....no sovereignty shucking or jurisdictional jiving will, in the long run, prevail. If the Supreme Court, as seems likely, finds that same-sex couples have an equal right to marry, those who stand in the courthouse doors will certainly lose, and possibly pay.

But regardless there is a cost:

Huckabee and Moore, like Faubus, will take their place as laughingstocks of history. But that is not to say that they can do no damage; many of history’s villains masked malign intent with a touch of the clown. Faubus’ intractability led to riots in the streets of Little Rock; to beatings of reporters by a mob; to threats and trauma that would remain vivid for the nine black students for the rest of their lives. And if the high court strikes down same-sex marriage bans, clerks or legislators who invoke pretended power to ignore that decision will spread lasting damage and pain far more widely than they know. Official discrimination and hatred scar their victims, however bravely they press on to eventual victory. 

The Court can minimize that cost, by speaking clearly about the rights and dignity of LGBT people.  

Justice Kennedy’s three gay-rights opinions have been ground-breaking, but also opaque. He has consistently refused even to discuss whether sexual-orientation is more like race or red hair. Instead, he has insisted that each challenged provision was invalid no matter what level of “scrutiny” applies. 

The rumblings from the South give the Court notice that equivocation may encourage resistance. Now might be the time, with four other Justices at his back, for Kennedy to say forthrightly that when any agents of the state—legislators, judges, clerks—discriminate on this basis, they violate both the Constitution and their oath. 

This time, we can but hope that the trumpet the Court sounds will not be uncertain.

Vigorous dissent in the 9th

Uh-oh.

From Scotusblog:

 Three judges of the U.S. Court of Appeals for the Ninth Circuit, sharply protesting a three-judge panel’s October ruling in favor of same-sex marriage in two states, argued on Friday that courts at that level of the federal judiciary have no authority to decide that question. The Supreme Court, those judges argued, took away that power forty-two years ago.

The critique, one of the strongest dissenting statements yet issued amid a wave of federal and state court rulings striking down bans on same-sex marriages, came as the en banc Ninth Circuit refused — by a vote of eight to three — to reconsider the panel’s combined decision in cases from Idaho and Nevada.

.... The heart of the dissent was its argument that lower courts are still bound by the Supreme Court’s one-line decision in 1972 in the case of Baker v. Nelson, declaring that a claim to same-sex marriage did not raise “a substantial federal question.” ....

Judge O’Scannlain did make some of the same other points that the Sixth Circuit panel’s majority had, such as the argument that an issue as sensitive as same-sex marriage should be left to the people and the state legislatures to resolve, and that it will be better for the nation and for its people to have it worked out by representative government rather than by the courts. ...|

The Ninth Circuit dissent, though, added another point that went beyond the Sixth Circuit’s ruling against same-sex marriage. The dissenters said that the courts simply have no authority to decide any question about marital policy, because there is a flat “domestic relations exception” to federal court jurisdiction over that field of law, since it is to be left to the states.

FLORIDA

Over 70% of Americans now live in states with Marriage equality.  Tomorrow, the SCOTUS may decide to take up the issue in conference discussing the appeals brought before it, particularly the 6th circuit.  There's a good summary of the SCOTUS cases here.

Despite the ever more desperate screams of the opponents, polls indicate that  56% of Americans approve of legalizing same sex marriage, including 41% of Republicans. 

This is almost over. 

SCOTUS to consider whether to decide

As we all know by now, the Supreme Court doesn't grant a hearing to all appeals put before it. They consider them in a conference, and then decide whether to decide. Box Turtle Bulletin:

The Supreme Court has scheduled January 9, 2015, as the date on which to consider whether to hear appeals in five marriage cases. The states from which these cases originate are Tennessee, Kentucky, Ohio, Michigan and Louisiana.

In Louisiana a federal judge ruled to uphold the anti-gay marriage ban, and the other four are in the Sixth Circuit, where the appeals court overturned federal judges who had ruled for equality.

We will not know until next month whether SCOTUS will hear any marriage appeals, but if they do so, it will only be those which are requesting that marriages be allowed. In other words, the court has not scheduled for hearing any appeals which could reverse a state’s current practice of allowing same-sex marriage.

Since there's a split in the circuits (with the 6th ruling against equality), the Court is likely to step in.

Let's hope we have a happy new year!

A quiet earthquake for marriage equality

When from out of the blue
And without any guide,
You know what your decision is....
Which is not to decide
          "On the Steps of the Palace", Stephen Sondheim

The Supreme Court today denied certiori to seven different cases involving marriage equality.  By denying cert, the court essentially says that the decisions from the lower courts stand.  This may be because those lower courts all agreed with each other, and have been falling all over themselves to find for equality.  Without a disagreement between the lower courts, there's not a conflict that requires the Supreme Court to solve.  This suits the Court, which prefers to let trends get hammered out by the states before taking a step.  

So this decision not to decide brings marriage to Virginia, Indiana, Wisconsin, Oklahoma, and Utah.

I know, Utah.  Right?  (After what they did to us in CA it's hard not to enjoy this....)

But wait, there's more! 

The decisions came from the 4th, 7th, and 10th circuit courts of appeal, which means that other states that still have bans in those circuits are also affected, giving a total of 11.  

• 4th: Virginia , West Virginia, North Carolina, and South Carolina.
• 7th:Wisconsin, Indiana 
• 10th: Utah, Oklahoma, Wyoming, Colorado, and Kansas as well.

THinkProgress gives us the map.  Potentially 30 states will have equality, and 60% of the population.

It is possible (or even likely) that one of the remaining circuits will uphold a marriage ban, as those circuits tend to have more conservative judges.  And that may be the case that the Supreme Court eventually takes.

As always, the most detailed information can be found at Scotusblog.

It's up to the supremes

From Scotusblog (Lyle Denniston)

With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file.
... 

The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now. 

If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.

And guess what?  The case may well rest not on constitutional law, not on fairness, but on religious freedom.  Mark Silk at Religion News Service on an amicus brief filed for Utah:

The religious organizations make clear in their amicus brief that, besides addressing all relevant Fourteenth Amendment issues, the Utah case uniquely addresses the burden placed on religious liberty by SSM. Quoting from a 2012 letter from a coalition of anti-SSM religious leaders, they write:

Judicially redefining marriage powerfully conflicts with religious liberty because, among other reasons, such a dramatic change in the law inevitably will lead to “forcing or pressuring both individuals and religious organizations – throughout their operations, well beyond religious ceremonies – to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.”… 

Utah’s petition provides an opportunity to address whether avoiding religious conflicts and church-state entanglements is a sufficiently weighty reason, alone or combined with other interests, to warrant allowing States to retain the age-old definition of marriage. 

If the court did find such avoidance sufficiently weighty, I’ve no doubt that the next legal step would be to ask that all states be forbidden to permit SSM on religious liberty grounds. But the real significance of the brief, it seems to me, is that it represents an acknowledgment that SSM is becoming the law of the land, and that the battle has now moved to the securing of legal exemptions for religious objectors.

So, the logic here is that anti-gay archbishop Salvatore Cordileone's religions freedom demands that the state deny me my civil rights (not to mention any non-Catholic church's religious freedom to marry me).  The sad thing is, after Hobby Lobby, it's just what might appeal to the 5 Catholics on the bench in DC.

Posnered: the 7th circuit speaks

In a unanimous decision, the 7th Circuit Court of Appeal found that the marriage bans in Wisconsin and Indiana are unconstitutional.  What everyone is talking about is the scathing opinion by Judge Posner, a Reagan appointee who is widely considered to be one of the most influential living jurists.  From the opinion, summarizing the states' argument:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

From Slate,  an analysis,

There is simply no harm, Posner writes, “tangible, secular, material—physical or financial, or … focused and direct” done to anybody by permitting gay marriage. Conservative Christians may be offended, but “there is no way they are going to be hurt by it in a way that the law would take cognizance of.” A lot of people, after all, objected to interracial marriage in 1967—but that didn’t stop the court from invalidating anti-miscegenation laws inLoving v. Virginia.

In his opinion, Posner makes these points with trenchant humor. But beneath his droll wit lies a moral seriousness that gay marriage opponents, even those on the high court, will be unable to shrug off. The modern arguments against gay marriage may be breathtakingly silly—but by mocking them, we ignore the profound harms that marriage bans inflict on gay people and their families. By placing these families at the center of his analysis, Posner restores the equal protection clause to its rightful place as the safeguard for all whom the state seeks to harm unjustly. His message for those who hope to demean gay people and their children is clear: Not on my watch.

From Twitter, the neologism Posnered, meaning to reduce an argument to rubble.

Streak ends, as it must

A federal judge in Louisiana finds rational basis in supporting that state's marriage ban because, well, incest.  From THink progress:

Political operatives seeking to cast aspersions on Feldman’s approach to gay rights will find a lot to work with in his opinion. At one point, he describes being gay as one of several “lifestyle choices” a person can make. At another point in his opinion, he compares same-sex marriage to marriage between “aunt and niece,” “aunt and nephew,” or “father and child.” He also likens marriage equality to polygamous marriages.

He also seems a little confused about the 14th amendment, which is not limited to issues of race.  This one will head up to the 5th circuit for appeal.

Meanwhile, in this first of --what, 30?-- decisions on our side, the fundies are rejoicing with their dehumanizing, hate-filled rhetoric.

7th circuit arguments

Today the 7th Circuit court of appeal heard arguments from WI and IN challenging lower court decisions overturning their marriage bans.  From the A/P

Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage. 

"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same sex marriage, he said, is "a tradition of hate ... and savage discrimination." 

Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions. 

At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't. 

"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"

Court watchers think this one will go our way.

What's the Supreme forecast?

We've seen a remarkable string of federal court decisions impacting marriage equality in states with anti-equality laws or constitutional amendments.  But for the majority of those cases, there is a stay in place that prevents people from getting married, until the appeals process plays out.  So there are a lot of cases percolating.

To remind you, and for our foreign readers (if there are any), state laws can be challenged in the state court system,which will only consider issues relevant to the state constitution, or in the  federal court system, under federal constitutional law.  For example, in California's case, the state supreme court reluctantly found that under the California Constitution, Prop8 was legal.  A separate suit was then brought in federal court arguing that it was illegal under the US constitution.  That was heard by the district court, and the 9th circuit court of appeal.

That's what finally went to the Supreme Court, where it was overturned on a technicality because the state declined to appeal, and the only  appellants (the opponents of marriage equality) were a private group that lacked standing. Incidentally, that situation has led to equality in Oregon and Pennsylvania, where the state declined to challenge the ruling and private parties were found to lack standing.  (It's worth reminding people that there is no legal obligation to appeal a court decision. )

The Supreme Court doesn't have to hear any case. Typically, one big driver of them choosing to hear a case is if there is a disagreement in the lower courts.  For example, if the 9th circuit finds for marriage equality, while the 6th does not.  That can only be remedied by the SCOTUS. And that may happen, as court-watchers are betting that the case before the more conservative 6th circuit will find against marriage equality.

Of course, regardless, the losing sides in any of these cases can appeal all the way up to the SCOTUS, as long as they have standing. Right now, the Utah case is closest to making a SCOTUS appeal, since they've been through the circuit. The Oklahoma case is also on track.  The Virginia case may also make an appeal.  Each of these is in a different circuit, and each provides a slightly different twist to the question.  From Equality on Trial,

In the Virginia case, the fervor of the ban is unmatched—not only does its ban deny marriage to same-sex couples, but it also seeks to deny them from acquiring any of the rights of marriage through other means, such as civil unions or domestic partnerships. The plaintiffs, two couples, each represent one aspect of the ban’s two-pronged scope: the denial of both in-state marriage licenses as well as out-of state marriage licenses. 

In the Utah case, the defendants’ case relies more heavily on the claim that the state is being deprived of its right to define marriage, “disenfranchising” millions of its voters. Because the Constitution doesn’t define marriage, and the Supreme Court only deems the “right to marry” as a fundamental right, Utah claims that it has been delegated the right to define what “marry” means. The defendants claim that the Tenth Circuit’s ruling undermines democracy, and the federal system. 

In the Oklahoma case, more emphasis is placed by the defendants on the suspect nature of same-sex parenting. They note the uneasiness of young adults who don’t know their biological parents, or are conceived through sperm donation, though arguments from the other side rebut these claims as largely unfounded, while conflict in the social science community over that issue has also provided little evidence for the claim.

But the court doesn't HAVE to take any of those cases, unless it sees a question it must answer.

 If it does decide to take a marriage case next term (which it probably will), it will be able to pick and choose which one.

Lyle Denniston tells us,

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29. That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. 

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away. The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete. The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term. 

There will be plenty of time, though, to get a case before the Court for decision during the new Term. If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June.

Update: Waiting in Virginia

Never let it be said that state elections "don't matter". In Virginia, which has such a harsh anti-gay policy that I call it the State of Hate, there has been a complete change since the election of Democratic Governor and Attorney General. They are marriage equality supporters for one. However, the AG is defending the law as it stands. So far, the 4th Circuit has found against the marriage ban, and refused to stay their order further. The marriage opponents have appealed to SCOTUS for a stay. THe AG agrees, because he doesn't want the on-again off-again spectacle of Utah or other states.

The 4th circuit falls under the responsibilities of Chief Justice John Roberts. It's widely assumed that he will continue the stay, since the Supremes also stayed the marriages in Utah. We'll know today. In any case, we'll almost certainly be seeing the Court take up marriage equality in their next session (starts in October).

Update: and, as expected, the stay is granted. No marriages in Virginia this week.

Analysis of "the Streak"

Scotusblog's estimable Lyle Denniston takes on the concept of a winning streak in marriage equality cases:

What the occasional breaks in the “streak” illustrate, though, is that the outcome is not necessarily predictable as other courts take on the question, and an ultimate Supreme Court decision in favor of same-sex marriage is hardly inevitable. ....

The “streak” also has created a lower-court record that, even if it does not produce the same result each time, will surely impress the Supreme Court when it finally allows itself to be drawn into the fray. Some historians have said that they know of no instance when the Court has bucked a trend such as this one has become. 

But the very nature of that trend can also be an argument against the Supreme Court choosing to get involved itself. If the only breaks in the “streak” have been a handful of rulings by divorce-court judges, none of whom so far has gone deeply into the issue before ruling, the Court could conclude that the issue is working itself out sufficiently in lower courts..... 

But that may not happen.

A number of observers who listened to hearings held last week in the U.S. Court of Appeals for the Sixth Circuit came away with a clear impression that a majority of that three-judge panel might well uphold one or more of the state bans in effect in the four states involved in that hearing. 

That kind of a break in the current “streak” would certainly demonstrate that there is a real division of opinion on the question, one that it would take a Supreme Court decision to resolve.

And there are no guarantees from the Supremes.  Ever.

What it comes down to: Is same sex marriage a new right, or equal access to an existing right?

Excellent analysis by Lyle Denniston:

When judges have ruled that gays and lesbians must be allowed, constitutionally, to marry, they have done so on the premise that this would not be the creation of a new right – that is, not a new-found right special to same-sex couples, but a right to join in equally in the existing, traditional right to marry. Those judges have accepted the argument of the same-sex couples that they want nothing more than equal access to the legal opportunity to wed. That, in essence, is the marriage equality argument. 

When judges have resisted (most often, these days, in dissenting opinions) the idea that same-sex couples’ choice to marry must be constitutionally protected, they have argued that this would be creating a new and special right, and they have noted that the Supreme Court has actively discouraged the crafting of new rights by constitutional fiat, rather than by constitutional amendment or by the acts of legislatures. That, in essence, is the argument against minting a new right. 

Both sides in this exchange can enlist some Supreme Court decisions on their side. After all, the Supreme Court has been working on its interpretation of just what marriage rights encompass for decades – indeed,at least since the late 19th Century. Little by little, the Justices have moved steadily toward the conclusion that, constitutionally speaking, the right to marry is fundamental to the civic order, a right of the highest constitutional rank. 

But yet to be decided, at least for gays and lesbians, is this: just what is the nature of that fundamental right? Is it a sweeping right to choose one’s life mate without interference by government? Or is it a right that is fundamental only because it has deep roots in the traditional definition of one-man, one-woman marriage?

Anti equality arguments just get sillier and sillier

From Slate:

Judge Vaughn Walker raised [a] point with a lawyer defending California’s Proposition 8, demanding to know “how permitting same-sex marriage impairs or adversely affects” straight people’s marriages. The lawyer had this response: “Your honor, my answer is: I don’t know. I don’t know.” 

The problem here, of course, is that an honest answer—“your honor, we believe gay people will destroy the marital institution altogether”—would undermine the supposedly secular, animus-free nature of these arguments. In developing them, anti-gay activists began with a conclusion—gay people don’t deserve the rights that we straight people have—then worked backward, camouflaging each prejudiced premise with a supposedly neutral talking point. Under any kind of scrutiny, these theories instantly fall apart, revealing their bigoted, constitutionally impermissible core.
...
And yet the inanity continues full-throttle, because gay marriage opponents have backed themselves into the corner they’ve always dreaded. They can’t give up their quest now—but they’re barred from citing the explanations that they truly believe, deep down, to be correct. The result is the current tailspin of idiocy, a shifting argument with rootless standards roaming from rationale from rationale in a desperate attempt to find shelter from the storm of progress swirling around it. It’s a pathetic display, but not an unpleasant one to witness. Stripped of all logic and reason, the argument against gay marriage has been reduced to gibberish. Enjoy the babbling while it lasts.

Why Marriage Equality is going to start losing

Important analysis from Think Progress:

Currently, six federal appeals courts, the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits, face marriage equality cases. Though it is fairly likely that equality will prevail in most of these circuits — the legal arguments for marriage equality are very strong, especially after the Supreme Court’s 2013 decision, and supporters of discrimination are left with a questionable states rights argument that no judge has yet embraced — it is unlikely that appellate court judges will show the same unanimity as their counterparts on the trial bench. Among other things, appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.

They go on to enumerate where the problems are most likely to be: the 5th,6th, and 7th. THis is because Appeals Court judges are appointed by the president and are often appointed for ideological grounds. It's why the presidency really matters, because the President appoints the judiciary.

VIRGINIA?!

Box Turtle Bulletin fills us in:

While I was sleeping, Federal District Judge U.S. District Court Judge Arenda L. Wright Allen found Virginias constitutional amendment banning marriage equality and the recognition of same-sex marriages from other states as a violation of the due process and equal protection clauses of the U.S. Constitution. 

Virginia’s same-sex marriage ban is considered one of the most sweeping bans in the country. It’s only fitting, then, the Judge Allen’s ruling is similarly sweeping.  

From the opinion:

Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect. 

Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “It can not have failed to strike you that these men ask for just. . . the same thing–fairness, and fairness only. This, so far as in my power, they, and all others, shall have. “ 

The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have. [Emphasis in the original]

More from Think Progress

Meanwhile in the 9th Circuit

From ThinkProgress:

When the U.S. Supreme Court made history in June by striking down the Defense of Marriage Act, the substantive holding was immediately clear: the discriminatory federal law “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” What was not exactly clear was what, if any, sort of legal standards the justices set for future courts. A federal appeals court ruling issued Tuesday finds the justices set a new, heightened standard for justifying discrimination on the basis of sexual orientation.

This came in a case where the court found that a juror could not be dismissed from a jury siimply because he was gay.

But they went further and said that the actions of the Supreme Court meant that gay people should be subject to "heightened scrutiny".

Ari Ezra Waldman:

Many scholars believe that discrimination on the basis of sexual orientation demands heightened scrutiny. We meet all the requirements: we have been burdened by discrimination for generations, our sexuality is irrelevant to our ability to serve as jurors, we have traditionally lacked the political power to realize our full rights in the political sphere, and we have a defining characteristic essential to our identity as a group. 

But the Ninth Circuit went a step further and argued that the Supreme Court'sWindsor decision suggests that heightened scrutiny is appropriate. Review inWindsor, the Ninth Circuit wrote, was not the traditional lowest form of review that had for years been applied to anti-gay discrimination. It was something more, something higher, something "intermediate." 

How could the Ninth Circuit justify this conclusion if Windsor never explicitly said it was using heightened scrutiny? 

The argument is simple: Look at what the Court actually did, not what it said. In Lawrence v. Texas, for example, the Supreme Court was similarly confounding, but by looking at the Court's decision, it was clear it was not using traditional rational basis. After all, the state had to do more justifying and the cases Lawrence relied on also used something more than rational basis. The same was true for Windsor. The state had to do a lot of work to justify DOMA, the precedent Windsor cited all used more than rational basis, and the Windsor Court did not go through a list of possible rational justifications for DOMA, all of which would normally be the case in a standard rational basis case. 

...
If the Ninth Circuit's opinion catches on, if sexual orientation discrimination gets heightened scrutiny post-Windsor, our battle is more than half over. It is hard to justify banning us from the institution of marriage under rational basis review; heightened scrutiny takes away all doubt.