100 Years of Legal History Leading Us to the Brink of Marriage Equality

Article by Spencer Lindsay, March 28, 2015

Later this session, the Supreme Court will hear arguments and rule on gay marriage cases from Michigan, Ohio, Tennessee and Kentucky. There has been a swift change on how the general public and the courts feel about the issue over the past decade. Forty states now have legal gay marriage, much of the legalization coming from the courts. Thirty-one of those have legalized gay marriage since 2012. In Perry v. Hollingsworth the court upheld a ruling stating that outlawing gay marriage was unconstitutional under the equal protection clause, and therefore must be made legal in California, but only on the technicality that those suing the state did not have Article III standing. In US v. Windsor the Supreme Court ruled that the Federal Government must recognize gay marriages from states that have legalized it. This has lead to many states having US district and appellate courts rule that their bans on gay marriage are unconstitutional, and these cases are about to be heard and voted on.

Public opinion has also rapidly shifted on gay marriage. In 2015 a CNN/ORC poll found that 63% of Americans supported gay marriage. 15 years earlier, in 2000, only 34% of Americans supported it. The CNN poll also found that even 42% of Republicans, who have traditionally been opposed to it, support it now. The poll also found that 70% of people under 50 support it. It is clear that the tide is changing on the issue, and given the recent legal history of the issue and quickly changing public opinion it is hard to imagine the court ruling that states have the constitutional authority to ban gay marriage.

Justice Kennedy has voted in favor of gay rights in all three landmark cases he has faced and it is hard to believe he would not do so this time. Also with the 2013 set of cases, the precedents favoring legalization seem to become too much to ignore. While there are no certainties when it comes to the Supreme Court, this cases seems to be as close to possible to a certainty on such a landmark (set of) case(s) and many would be utterly shocked if the court did not rule in favor of gay marriage. In this article, we will take a look back at the supreme court cases that have lead us to this point.

Pierce v. Society of Sisters (1925)- Oregon had created a law making it mandatory for all children to attend public school, thus outlawing private school. The Supreme Court ruled that this was a violation of substantive due process because parents have an inherent right to decide how their children should be educated, and the state entering this part of the family sphere was a violation of their liberty. We see here that the court begins to recognize a certain protection of family life and gives individuals great liberty in deciding how they govern it.

Hirabayashi v. United States (1943)- The court ruled that curfews for Japanese Americans were constitutional, at the time, because the US was at war with Japan. While the outcome may have been terribly racist, the decision established a process that would actually benefit struggles against discrimination. The Court established that race was a ‘suspect classification,’ and that any rule dealing with race or another suspect classification was subject to strict scrutiny, meaning that the government had demonstrate that they had a compelling state interest to create such a law. This basically paves the way for the legal side of the civil rights movement and plays a large role in gay rights cases. Sexual Orientation is a quasi-suspect class meaning laws regarding it are subject to heightened (or intermediate) scrutiny.

Brown v. Board of Education (1952)- This is perhaps the most famous case in the history of the court, and brought an end to segregation because it was a blatant violation of the equal protection clause. It struck down previous doctrine of ‘separate, but equal’ because race is a suspect class and by segregating schools the state was inherently hindering black students. A similar equal protection argument would lead to the legalization of gay marriage in California in Perry v. Brown/ Perry v. Hollingsworth in a district court ruling in 2011.

Girswold v. Connecticut (1965)- This may well be the most important decision the Supreme Court has ever issued because it created the right to privacy. Connecticut outlawed contraceptives and the court ruled that this violated the due process clause because the state had no right to be involved in that particular sphere of people’s lives. It established that there are certain matters that are private and that the law cannot interfere with these.

Loving v. Virginia (1966)- The court outlawed laws against interracial marriage. The court found that marriage is a fundamental right, and that under the equal protection clause the state could not deny marriage to interracial couples. The legal reasoning in the set of cases before the court today may be almost identical.

Lawrence v. Texas (2003)- The court struck down anti-sodomy laws, largely aimed at same-sex couples, in Texas and thirteen other states under the due process clause citing a right to sexual privacy. Again, the court found that what goes on between two consenting adults is none of the government’s business.

United States v. Windsor (2013)- The court struck down the Defense of Marriage act defining marriage, from a federal standpoint, as between a man and a woman. They found that it was unconstitutional because it violated a due process clause by denying couples of the legal rights associated with their legal marriages (provided they were married in states in which same sex marriage was legal). The law denied equal protection to same-sex couples.

The question before the court now is whether or not individuals have the right to enter into a same-sex marriage, meaning that it would be illegal for states to ban it. There are several arguments the court could make as to why individuals have this right. The decision could focus on the right to privacy, the right to marry, equal protection, and even our conception of liberty as Pierce did and Lawrence, at times, came close to doing. No matter what the exact reasoning is it is very likely that the court will rule in favor of same-sex marriage. Justice Kennedy (often seen as the swing justice) wrote both the Lawrence and Windsor decisions, and it seems almost certain that the alliances that brought us Windsor and Perry in 2013 will bring us another greater victory for

Unpacking the Fight on Immigration

Article by Jennifer Cain March 12, 2015

Last Monday, Congressional Republican leaders lowered their fists in the crusade against President Obama’s immigration policy. But their party’s fight continues in court this week. Texas lawmakers put Obama’s executive order on hold today. 12 other states are suing the President for overstepping his authority. In a nutshell: the debate has shifted (if it ever was focused in the first place) from immigration reform to a partisan fight over executive power of a democrat in office. The record of other presidents (some Democrat, some Republican) making similar policies without the flack begs the question: is the resistance over this specific order stemming from some personal vendetta against Osama- I mean Obama?

Si. The GOP attached a provision–that would have gutted the president’s authority–to a funding bill on homeland security/anti-terrorism. Using the funding bill as a megaphone for scorn, Republicans put the jobs and livelihoods of thousands of government workers at risk. Passing a law that said the president was wrong was more important than preserving their party’s basic axioms on the issue, like simply patrolling the borders.

But the keystone of tension over immigration sits deeper. The issue affects the future success of both parties. Reds and blues are likely envisioning six chess moves ahead, Underwood style. Think about it: 71% of Latinos voted for democrat in the last election. Providing more undocumented residents (a community that is predominately Latino) citizenship would provide Dems enough constituency to turn the state.

Who does the executive order directly affect?

Obama announced the executive order in November 2014. The idea was intended to grant temporary legal protections for undocumented children (the so-called DACA kids) and their parents. To qualify for the status, candidates would have had to live in the states since at least 2010. Policy makers estimated that the order would have helped 100,000 young people and roughly 4 million adults.  There’s an estimated 11.5 undocumented immigrants living in the U.S. today, so that number could even be higher.

This is the second executive order Pres. Obama called into effect on immigration. In Sept. 2012, he signed his first executive order on the issue that granted young immigrants who qualified under the DREAM act for citizenship a reprieve from deportation.There were no green cards involved. Republicans also balked then, at the idea Obama had acted without Congressional approval at this piece of law. Others didn’t question his authority, as an NPR headline put it: “In DREAM order, Obama Did What President’s Do: Act Without Congress.”

Who the Orders Protect

Dream Order of 2012	Immigration Order of 2014
Students	Parents of Dreamers
Soldiers	People in Good Legal Standing who have lived in the US for at least 5 years
Low threat people under 30 brought to the US as Children	______
1.1 Million People Protected	4.1 Million People Protected

But the impact of the first order has been marginal. While the “DREAM order” may have helped young people on a path to education or a military career, it left out even younger undocumented residents and their parents. Undocumented parents being deported are forced to separate from their families; some are even taking their American-born children back to Mexico with them just to keep the family together. The second executive order could prevent situations like this from happening.

Who’s against the executive order and why?

It’s mostly right-wing republicans that said President Obama’s immigration policy is unconstitutional. Their arguments aren’t much different than the their opinions we’ve heard on issues like Obamacare and advisory appointments.

Ted Cruz—who is expected to run for president—is one of the most outspoken opponents. Cruz holds a hardline view on immigration. He calls Obama’s order “Executive Amnesty,” and believes the president is condoning criminal behavior by providing temporary protections. But the GOP has struggled to win support as their opposition comes sans proposed alternatives. And some Republicans—in the Central Valley, CA for example—have tried to distance themselves from hardliners like Cruz, in fear of alienating their predominately-Latino voters.

Looking back at the Johnson-Reed Act of 1923, it’s impossible to ignore and important to consider the role race played in the history of U.S. immigration policy. The Johnson-Reed Act (revised in 1952, abolished in 1965), set quotas for how many immigrants from each country could enter the U.S. It had large quotes for people with British descent, lower quotas for everyone else, and zero quotas for people of Asian descent. The law also reaffirmed existing biases against African Americans by allowing lawmakers to enforce false notions of American Identity and bad categories. The Johnson-Reed Act, racist at its core, was supposed to “preserve the ideal of American homogeneity,” as the federal government put it.

Was the executive order unconstitutional?

Texas and 25 other states are suing Obama on the grounds he did not have the constitutional authority to administer such orders. In the February ruling, Judge Hanen wrote that the state was “being drained by the constant influx of illegal immigrants.” He has yet to rule on the larger constitutional questions that many Republicans argue. Their two main assertions are that Obama’s actions unjustly skirt around Congress and excuse criminal behavior. In Hanen’s words: the administration is “successfully completing the mission of the criminal conspiracy,” but many of the judges arguments appear not germane: During the hearing, Judge Hanen presented visuals on the leaders of Mexican drugs cartel. The order does not apply to people who have broken the law.  It is important to note that Presidents Reagan and Bush took similar executive action on immigration that was not a legal issue.

The Obama Administration has got its hands up and is seeking an emergency stay of Judge Hanen’s injunction. An emergency stay would undo the judge’s ruling. The court system may never answer questions regarding constitutionality, but Republicans are heavily relying on the judicial branch to overturn Obama’s order that many immigration advocates believe would enhance the livelihood of millions of undocumented residents.