Alex Blaze

A wise latina woman with the richness of her experiences will speak on same-sex marriage

Filed By Alex Blaze | July 16, 2009 11:30 AM | comments

Filed in: Marriage Equality, Politics
Tags: 14th Amendment, baker v. nelson, charles grassley, gay marriage, iowa, marriage, marriage equality, New York, same-sex marriage, second circuit, sonia sotomayor

Updated after the jump

I haven't posted on the Sotomayor hearings because I've been watching with a mix of ennui and anger as a bunch of racist bullies call a latina woman a racist bully, feign interest in strict interpretation of the law only to criticize her because they don't like the outcomes of her decisions, and talk down to her as if their conservative political ideology should be a substitute for considering the law. Lindsay Graham's little scold session was particularly harsh, but then I guess that's what happens when politically impotent Senate Republicans are charged with determining the qualifications for someone who's far more qualified for her job than they are for theirs and will end up being more powerful than they are.

Anyway, they ended up talking about same-sex marriage when Chuck Grassley (who, out of pure, random chance, is up for reelection in 2010 in Iowa) brought up Baker v. Nelson, aka the controlling precedent on whether the 14th Amendment guarantees a right to marry the consenting adult of one's choice.

Video and more after the jump.

Oh, Senator. I have no idea why she was able to comment on Roe but not on Baker. Could it have anything to do with the fact that the former is arguably the most controversial and most discussed Supreme Court case of the 20th century that keeps on appearing in Supreme Court decisions while the latter is a rather obscure Minnesota State Supreme Court case that's technically controlling precedent but hasn't really been cited at the Supreme Court because it dealt with a type of case that hasn't come back? Sorry she didn't study up on the one federal case that deals with the issue you plan to fundraise off of next year.

It'll be interesting to read her opinion on the matter. The Baker decision famously said that Loving v. Virginia doesn't apply to same-sex marriage and that same-sex marriage bans don't violate the US Constitution:

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment./4/

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/"

Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.

(And for those people who still don't think that going to the Supreme Court and losing won't hurt anything, Baker was cited as controlling precedent on the 14th Amendment and same-sex marriage in cases ruling against marriage in New York, Washington, Indiana, and Nebraska.)

Of course, the fact that it's precedent doesn't mean that it's written in stone. And that was written in 1971 - a lot's changed since then. I'd be interested to hear what she has to say considering the DOMA challenges and the Prop 8 challenge working their way through the system. Although I highly doubt that, just before the confirmation vote, she's going to say: "Baker is bullshit!"

Update: HRC has video of Sotomayor being asked by John Cornyn about marriage. Love the "I'm not asking you to prejudge this case, but can you tell me what you think about this hypothetical future case?"

So she'll approach it "with an open mind." Thank you very much.

Here's Lindsay Graham, talking down to her again asking her if she's heard of the Full Faith and Credit Clause. Yeah, bozo, she was a federal judge before you were even in the House moralizing about Bill Clinton's blow job. I think she's heard of various exceptions to the Full Faith and Credit Clause.

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Holy Veracity, Batman!

Alex, your first paragraph sums up my feelings EXACTLY lately. I am beyond DISGUSTED how we allow men and women to hold positions in government when they speak as if their level of understanding of the issue is akin to a 2nd grader's....(sorry 2nd graders)

WHERE ARE THE EDUCATED? OK - I realize it's all an act to "support the party", but still. The GOP needs to be hit HARD with da EDUKATION STICK.

Harper Jean | July 16, 2009 2:19 PM

The reason for Judge Sotomayor's hedging, it seems to me, is simple: the status of Baker may actually be quite different from that of Roe, because in Baker the U.S. Supreme Court issued no opinion but simply issued a one sentence order stating: "The appeal is dismissed for want of a substantial federal question."

This is not a formulation the Court uses anymore, and there is some lack of clarity as to whether a case disposed of in this manner actually creates a precedent or not, since the Court gave no clear indication of actually having considered its legal merits, let alone any explanation of its reasoning. Accordingly, there is at least an argument that the Court would not be bound in any way by its outcome.

Thanks for the info about the way this case will be seen by the court. I of course hope that it has as little power to influence future Court decisions as possible, and I'll post what she says if she does, in fact, get back to Sen. Grassley about the decision and her response is made public.

You'd be surprised how common it is to have people raise their volume considerably and slowing down speech when they pick up on my ethnicity.

Lindsay (tee-hee; fucking great irony for a homophobic senator to be given a girly name)Graham reserves a special place in my Wall of Fail, though.

Don Sherfick Don Sherfick | July 16, 2009 5:57 PM

I saw somewhere that "Latina woman" was redundant, just like "old adage", or perhaps old fossil, which, I am convinced, is an apt and unredundant descrpition of the Republican Party these days.

Robert Ganshorn Robert Ganshorn | July 17, 2009 12:00 AM

What is really outrageous is the manner in which Republicans set the bar so low for Republican nominated conservative justices. In those confirmations their only concern was that the individual was qualified period. Their conservative bent was not questioned strenuously. This is only showboating for votes and lets hope the Iowa voters see through it.