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Time is right for decision on gay marriage

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By John W. Eyster
February 11, 2014

Our US Supreme Court has articulated five doctrines of “justiciability” to assess whether a case is ready for court review.  These doctrines are:  Advisory opinions, Standing, Ripeness, Mootness and Political questions.  Important to report right now that the US Supreme Court has ruled that the US Constitution prohibits federal courts from issuing “advisory opinions.”  The doctrine which I choose to focus on for this WE THE PEOPLE blog post is “ripeness.”  The bottom-line of this doctrine is that a case is “RIPE” for the courts to decide.  For more details, I suggest Wikipedia’s article, “Ripeness.”

I am convinced that many courts in the US have decided that cases dealing with gay marriage bans are RIPE.  There are numerous decisions already handed down which assert that gay marriage bans are UNConstitutional.  Numerous cases are pending decision.  The diversity of decisions among the US Courts of Appeals – there are 12 geographic circuits and the Federal Circuit headquartered in Washington, DC.  You can see the circuits on this map, “Geographic Boundaries US Courts of Appeals and US District Courts.”

Each of the Appeals Courts has judicial authority ONLY IN ITS CIRCUIT.  This means that there may be areas of the country where one interpretation of the law holds and other areas where another interpretation of the law holds.  When there are different decisions among the Appeals Courts, it is time for the Supreme Court to make a decision for the whole nation. 

The diversity of decisions and cases in various Appeals Courts is creating more and more pressure for the Supreme Court to hear a gay marriage case and make a decision for the whole country.  Observers of the Court expect that case to be chosen carefully by the justices for the 2014-15 term which starts on Monday, October 6, 2014 – FIRST MONDAY IN OCTOBER.  The court will hear oral arguments during the term sometime and most likely not announce its decision until the end of the usually scheduled late in June the next year.  We are NOT likely to have a Supreme Court Decision until the end of June 2015.

In the meantime, there are numerous pending cases which are likely to be decided by Courts of Appeals.  These include the appeal by the State of Utah after a Federal District Judge in Utah (native of Fort Atkinson, WI) ruled the Utah Constitutional Amendment banning gay marriage UNConstitutional. 

Nevada has the reverse situation since the federal judge ruled in favor of the state.  The same-sex couples appealed to the 9th US Circuit Court of Appeals.  Yesterday, the Nevada Attorney General Catherine Corte Masto took action to withdraw Nevada state arguments for the state’s prohibition of gay marriage.  The basic report published by The Washington Post is headlined, “Nevada AG ends fight to uphold gay marriage ban.” Republican Governor Brian Sandoval of Nevada announced his agreement with the AG’s move stating that the state's arguments supporting the ban are no longer defensible in court.

The decision announced on Thursday, January 23, 2014 by the newly elected Virginia Attorney General Mark Herring that he would not defend the state’s ban on gay marriage sent shock waves through Virginia and other states with gay marriage bans.  Attorney General Herring asserted, “I cannot and will not defend laws that violate Virginians’ rights. The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”  If you want to read more, I suggest PBS Newshour’s “Virginia’s Attorney General will not defend state’s gay marriage ban” published on Thursday, January 23, 2014.    

WISCONSIN is now among the states with a suit asking a FEDERAL COURT to declare the Constitutional Amendment passed by WI voters in 2006 on referendum.  This amendment is parallel to those in Utah, Nevada and Virginia.  I read with interest the news articles about the filing of the case on February 3, 2014 as reported by the Milwaukee Journal Sentinel, “ACLU lawsuit challenges Wisconsin same sex-marriage ban.”  I encourage you to read this feature article to gain information with perspective on the issue and situation in Wisconsin.

For an overview of the national situation as of February 10, 2014, make time to read Matt Pearce’s article, “Same-sex marriage roundup:  Nevada, Utah, Oklahoma, Ohio, Indiana.”  WISCONSIN did NOT make his summary list and is one of numerous developments since the article was published on February 10, 2014.

Day-by-day there are significant developments as the ramifications of the REQUIREMENT of “equal protection under the law” set forth in the 14th Amendment of the U.S. Constitution come into focus.  Yesterday, Monday, February 10, 2014, U.S. Attorney General Eric H. Holder Jr. issued a new directive to the Department of Justice expanding government recognition of same-sex marriages to all federal courtrooms and prisons, and some federal benefits.  The new policy was announced by Holder last Saturday night (2/8) at a gay rights dinner in New York City.

Details are included in Timothy M. Phelps article, “Federal government to expand recognition of same-sex marriage” published February 8, 2014 in the Los Angeles Times.  Complementing this article is the feature section posted by the Los Angeles Times, “Gay marriage in the Supreme Court” Important background information on the issue.

I agree with AG Holder who has compared the current fight for gay rights to the civil rights struggles of 50 years ago and vowed that his department will play an active role asserting, "The Justice Department's role in confronting discrimination must be as aggressive today as it was in Robert Kennedy's time.  As Attorney General, I will not let this department be simply a bystander during this important moment in history.”

The time is RIPE for the US to expand move to better fulfill its vision/principle of EQUALITY!  I hope we will have a US Supreme Court decision by the end of June 2015 providing for marriage equality for persons regardless of their sexual orientation. What do YOU hope?


John W. Eyster lives in the Edgerton area. He is an adjunct professor of political science at UW-Whitewater and an advocate for Project Citizen, a model curriculum for democracy/civics education in Wisconsin high schools. John is a community blogger and is not a part of The Gazette staff. His opinion is not necessarily that of the The Gazette staff or management.


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