The two articles published by SCOTUSblog written by Michael Klarman, which I linked to in the post on April 17, are all we are going to get from Klarman. That’s a shame, because he’s knowledgeable and writes well, and I thought he was going to give us a longer series of articles before the hearing on the marriage cases on Tuesday, April 28. Ari Ezra Waldman, however, writing on Towleroad, gives us two articles, yesterday, April 23, and today, April 24, which cover ground similar to that covered by Klarman. Waldman writes about Romer v. Evans (1995). In this case, for the first time, the Supreme Court acknowledged that there were gay people, as opposed to people who committed sodomy. Once that was done, our community was on the road to having its rights affirmed. Ari Ezra Waldman also discusses Perry v. Schwarzenegger (2010), in which, Judge Vaughn Walker, district judge in the US District Court for Northern District of California, overturns California’s Proposition 8. This was the first time the issue of same-sex marriage had come to trial, and opponents of marriage equality brought out all their reasons for opposing it. In his decision, Judge Walker marched through all the arguments used against marriage equality, and all of the “expert witnesses” called to support Prop 8, and rejected each one, leaving opponents with nothing to support their side of the argument. After Perry v. Schwarzenegger, there was very little that opponents could say against marriage equality that had not already been said and rejected in a federal court of law.
Judge Walker determined that the case should be subjected to rational basis review and that it also met the requirements of heightened scrutiny, the same level of analysis as is employed in cases involving race and gender. He determined that Proposition 8 failed the constitutional Equal Protection and Due Process clauses. It was a huge victory for gay people.
Professor Yenji Yoshino, professor of law at New York University, addresses the question whether a ban on same-sex marriage can be treated as a gender-based classification, that is, in Alabama, say, is it a question of a man’s sexuality that prevents him from marrying another man, or is it a question of his gender? Federal Circuit Judge from the Ninth Circuit Marsha Berzon, in her opinion, explores the possibility of the real discrimination being against a person’s gender rather than that person’s sexuality.
I recommend these posts. Knowing who we are is necessarily a matter of knowing how we got here, and, in legal cases, knowing exactly what cases decided what aspect of our existence, so that when the time comes, we’ll know what to do to make things different. Tuesday at the Supreme Court is going to be a big deal. We need to pay attention.