Thursday, April 30, 2015

"Gay PDA Is Okay!"

"Life's Journey Is Too Short Not To Take His Hand... Live Fearlessly"

"The Things That Love Says..."

"Fear Eats the Soul"

"We Were Always There..."

"Although the world would try to stop us, we knew love and happiness..."

"A Little Sane Advice..."

"Same Gender Loving People - No. 2003"

"The True Test Of Love Is A Home Together..."

Positive images of people like me... The truth of the matter is that we all need to see people like ourselves. So everyday, I'll post a photo, drawing or some other artwork that depicts Same Gender Loving People as what we are... Only Human.

"The Artist's Corner..."

"Peter and Patric at Springhead"
Alkyd oil on masonite board
Michael Leonard

Wednesday, April 29, 2015

"Gay PDA Is Okay!"

"Freedom To Attend The Prom... Live Fearlessly"

"We Were Always There..."

"We found love amidst the tragedy of war..."

"The Truth About Hypocrisy..."

Explicit Photo Outs North Dakota Lawmaker; Retaliation Claimed

Emily Welker
Forum News Service

A North Dakota lawmaker who sent an explicit photo of himself to another man says the exchange being made public is retaliation for a recent vote against expanding gay rights.

State Rep. Randy Boehning, a 52-year-old Republican legislator from Fargo (pictured at right), says a Capitol employee told him a fellow lawmaker vowed to out him as gay if he continued to vote against bills granting gays legal protections against discrimination.

Boehning refused to identify at this point who he believes is behind the purported political payback for his vote against Senate Bill 2279, the third such bill defeated in the past six years by North Dakota legislators.

The exchange came to light when Dustin Smith, a 21-year-old Bismarck man with no known connections to the Capitol, contacted The Forum of Fargo-Moorhead earlier this month, saying he recognized Boehning from a gay dating smartphone app called Grindr. Chatting under the user name Top Man!, Boehning sent Smith sexually suggestive messages and, in the early morning hours of March 12, an unsolicited photo of his penis, according to exchanges reviewed by The Forum.

"How can you discriminate against the person you're trying to pick up?" Smith said in a recent interview.

When first questioned about the messages two weeks ago, Boehning declined to comment on whether he sent the explicit photo and messages.

But on Saturday he confirmed he was Top Man! and said he doesn't think sending a graphic photo of himself to a stranger is a lapse in judgment, as Grindr is an adult site where users often exchange such images.

"That's what gay guys do on gay sites, don't they?" Boehning said. "That's how things happen on Grindr. It's a gay chat site. It's not the first thing you do on that site. That's what we do, exchange pics on the site."

Boehning, who is not married, said there are people who know he is gay, but many of his family members and friends do not. He said Saturday he is also attracted to women and was relieved to come out because he no longer has to worry about being outed.

"The 1,000-pound gorilla has been lifted," he said. "I have to confront it at some point."

Boehning said before he voted against the anti-discrimination bill on April 2 a Capitol employee told him a fellow House lawmaker who supported the bill said Boehning would be targeted for retaliation if he didn't vote for it. The 12-year veteran of the House still voted against 2279. He also voted against a similar bill in 2009 and would have in 2013, had the proposal not died in the Senate before a House vote.

He would not say who told him he would be targeted or name the lawmaker who is said to have mentioned it. Also, he couldn't recall the day he was informed of the alleged retaliation threat.

As of Monday, Boehning said he hadn't talked to legislative leaders about the alleged threat and wouldn't identify who he thinks is involved without doing that first. Though there is no binding ethics code for North Dakota legislators, he said there could be ramifications and "this isn't something I take lightly."

Smith said he stepped forward on his own after discovering Boehning's identity when he saw the legislator's photo, which was published on the front page of The Forum the day after the vote. No one with connections to the Legislature encouraged him to take that step, he said.

Rep. Josh Boschee, a Fargo Democrat and the only openly gay member of the Legislature, said he did not speak with Boehning about his vote.

But Boschee said lawmakers from both parties have told him a gay Republican staffer at the Capitol who had been in contact with Boehning on Grindr since his last run for office had warned Boehning "there could be consequences for the hypocrisy of his vote," Boschee said.

Boschee would not identify the staffer, saying the man was concerned about the political fallout from his own party.

Asked on Monday via email if it was a Republican staffer who warned him to change his vote, Boehning didn't address it specifically.

"Well it would be interesting who it was then stay tuned I guess," he wrote.

Outing closeted gay politicians who cast votes seen as anti-gay is divisive in the gay community and has many critics. But while Smith and Boschee said they regret that Boehning was forced to come out of the closet, they believe it points out an important discrepancy between Boehning's vote and his personal life.

For his part, Boehning said coming out under these circumstances was both a personal relief and a political struggle.

"This has been a challenge for me," Boehning said. "You don't tell everyone you're going to vote one way and then switch your vote another way -- you don't have any credibility that way."

Boehning, a self-employed general contractor, said he has voted against multiple attempts to extend protected-class status to include sexual orientation because he doesn't believe his south Fargo constituents support it. Also, he has problems with the bill's language, which would protect people who are "perceived" to be gay.

If "perceived" was removed from the bill, he might vote in favor of it, he said.

Asked whether he would be personally concerned about being discriminated against in the areas of housing, workplace or public accommodation, Boehning, who lives in a rented Fargo apartment, said landlords have the right to do as they see fit.

He said many members of the Legislature find themselves allying and clashing on a variety of issues, regardless of party.

"Politics makes strange bedfellows," he said.


"Fear Eats the Soul"

"A Thought To Ponder..."

"The Views To Love..."

"The journey to love has begun..."

"Will Justice Be Done...?"

Supreme Court: Kennedy’s Questions Offer Hope -And Worry- For Both Sides In State Marriage Ban Argument

Lisa Keen
April 28, 2015    

The very first question from the U.S. Supreme Court bench Tuesday morning was about the rights of states to regulate marriage and, though attorneys for same-sex couples tried numerous times to refocus attention to the damage that bans on same-sex marriage inflict on the rights of LGBT people, the focus stayed largely on states’ rights throughout the historic argument.

For two and a half hours –more than twice the time most cases get—an animated bench grilled attorneys for same-sex couples and the four states that seek to ban their marriages.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer asked most of the tough questions to challenge the governmental interest served by banning same-sex couples from marriage. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito asked most of the tough questions to parties seeking to strike down those bans. Per his routine, Justice Clarence Thomas asked no questions, and true to his role as the court’s most unpredictable vote, Justice Anthony Kennedy asked tough questions of both sides.

The packed courtroom was equally lively, laughing frequently, applauding once, and, at one point, a man at the back of the courtroom jumped up and began ranting loudly and incessantly about the Bible, “abominations” and that gays would “burn in hell.” Such outbursts have occurred in the court recently on other issues and the man’s disruption seemed well-timed, given that it did not interrupt any attorney’s allotted time before the bench.

But, as is routine, the justices engaged in a great deal of interrupting attorneys throughout the proceeding.

Mary Bonauto
Barely a minute into Gay & Lesbian Advocates & Defenders’ Mary Bonauto’s opening comments about how laws banning same-sex couples from marrying convey a “stain of unworthiness,” Justice Ruth Bader Ginsburg asked how the “federal government’s historic deference to states when it comes to matters of domestic relations” should influence the court’s decision on whether the state bans are unconstitutional. In asking her question, Ginsburg referred to the court’s 2013 landmark decision in U.S. v. Windsor, in which the court emphasized states’ rights to regulate marriage as it struck down the key provision of the federal Defense of Marriage Act (DOMA). DOMA had prohibited the federal government from recognizing marriages licenses granted by some states to same-sex couples.

“States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that,” said Bonauto.“And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”

Chief Justice John Roberts jumped on Bonauto’s choice of words, saying same-sex couples weren’t seeking the right to “join” marriage but to “redefine” it. That comment echoed a sentiment he expressed in 2013, during oral arguments over California’s Proposition 8 (Hollingsworth v. Perry), and hinted early on that Roberts is not a likely vote in favor of striking down state bans on same-sex marriage.

“Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable,” said Roberts.

Bonauto replied that many things have changed for society over time, for instance, the role of women, but that the equal protection clause of the 14th Amendment to the U.S. Constitution provides “enduring guarantees” to citizens.

Kennedy jumped in next, seeming, at first, to address Roberts’ concern but winding up in a place that seemed to support it. He noted first that it has been about 10 years since the Supreme Court struck down sodomy laws –an amount of time comparable to the time between the court’s decision to strike down state mandated racial segregation of schools (Brown v. Board of Education) and the decision to strike down state laws banning interracial marriages (Loving v. Virginia). But then he compared the 10 years to the “millennia” of years during which people thought of marriage as being between a man and a woman.

“This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better’.”

A few minutes, Ginsburg seemed to respond to Kennedy’s comment when she said to Bonauto:

“You 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,” said Ginsburg. “Same-­sex unions would not have opted into that pattern of marriage, which was 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,” said Ginsburg, “to make it egalitarian when it wasn’t egalitarian.”

Justice Scalia soon entered the fray to say the question “is not whether there should be same­-sex marriage, but who should decide the point.”

“And you’re ­ asking us to decide it for this society when no other society until 2001 ever had it,” Scalia told Bonauto.

Justice Alito took the discussion back to ancient Greece, noting that same-sex relationships were accepted then but that there were no marriages between same-sex couples.

“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” asked Alito.

Bonauto tried to make the point that a big difference between other cultures and other times is that the United States, from its inception, made “a commitment to individual liberty and equality.”

Justice Breyer questioned the “wait and see” rationale that states offered for denying marriage to same-sex couples. Bonauto noted that states, including Virginia in Loving v. Virginia, offered that same rationale to justify miscegenation laws. The Supreme Court struck down those laws, said Bonauto, even though 80 percent of the public supported such bans and the Supreme Court’s striking down of those laws was considered a “profound change.”

Solicitor General Don Verrilli repeatedly reminded the court that a “wait and see” approach to the issue leaves “the nation as a house divided” in the same way racial segregation did. And leaving the issue to voters, he said, “will be saying is that the demeaning, second­-class status that gay and lesbian couples” in ­­states with bans “is consistent with the equal protection of the laws.”

“That is not a wait-­and­-see,” said Verrilli. “That is a validation.”

John Bursch, a special assistant attorney general from Michigan, argued that the fundamental liberty interest of every individual is at stake in the case –the “liberty interest in deciding the meaning of marriage” through the democratic process. And he said the state’s marriage laws were developed “to serve purposes that, by their nature, arise from biology.”

Just as the question of whether states can ban same-sex marriage seemed to rely largely on how Kennedy will vote, the court seemed similarly split on the question of whether a state can refuse to recognize a marriage license from another state. And Kennedy had only one question on the issue of whether states –if they are allowed to ban same-sex marriages—must at least give recognition to marriage licenses issued to same-sex couples by other states.

Kennedy’s question referred to a hypothetical that Justice Alito posed to attorney Douglas Hallward-Driemeier, representing same-sex couples, about whether states would have to recognize marriage licenses issued by other states to 12-year-olds. Hallward-Driemeier said “probably not” because the state would have an “important interest in protecting the true consent” of the child. Noting that if the court ruled that states have “sufficient” justification to enforce bans against same-sex marriage, why should those states have to “yield” when other states issue marriage licenses to same-sex couples.

It was some time before Hallward-Driemeier eventually answered the question, but it was a dramatic response.

“In the corporate context, once a corporation is established under the laws of one State, that corporation exists in all other States,” said Hallward-Driemeier. “Certainly, the families that our Petitioners have established are entitled to at least that same respect.”

Later still, during his few minutes of rebuttal time, Hallward-Driemeier pointed out that Tennessee law recognizes as a parent a man who is married to a woman who gives birth to a child through the use of alternative insemination, even “though the husband has no biological relationship with the child.”

In response to a suggestion from states seeking to defend the bans that gay married couples simply not move to states that ban same-sex marriage, Hallward-Driemeier notes that one plaintiff couple was ordered to move to Tennessee by the U.S. Army. Another needed to move to Tennessee because the only university that offered both spouses jobs was located in that state.

Valerie Tanco and Sophy Jesty met and married in New York and then moved to Tennessee, where Tanco gave birth to their daughter.               “Now, as a result of the non-recognition laws, when, as occurred last week, their daughter is hospitalized, Tennessee would treat Dr. Jesty not as mom, but as a legal stranger with no right to visit her child, no right to make medical decisions for her. These laws have real import for real people,” said Hallward-Driemeier.

But the overriding concern Tuesday was how the court would rule on the first question: Does the 14th Amendment require a state to license a marriage between two people of the same sex?

Gay legal activists at the argument Tuesday expressed optimism that Kennedy will come through with the majority vote.

Kate Kendell, executive director of the National Center for Lesbian Rights, which helped represent same-sex couples from Tennessee, said she thinks there’s “no doubt” the court will find that states have to recognize other states’ marriages. And she thinks “things look favorable” for striking down state bans on same-sex marriage.

On the Supreme Court plaza after the argument, Kendell acknowledged that Kennedy seemed “more inscrutable here than he was in the DOMA case.”

“He didn’t really tip his hand. He asked difficult questions of both sides,” said Kendell. “But even if it’s sooner than he wants to or the court is not entirely comfortable with it …when push comes to shove, I do not believe this is a justice who is going to allow Romer v. Evans and Lawrence v Texas and the Windsor decision to come up full stop and not have that legacy finished.”

Kennedy wrote the majority decision in all three cases, striking down a voter-approved initiative in Colorado (Romer), striking down state laws banning intimate relations between same-sex couples (Lawrence), and striking down DOMA (Windsor).

Jon Davidson, legal director for Lambda Legal, said he was encouraged by Kennedy’s comparison of Brown and Loving to Lawrence and this appeal, Obergefell v Hodges. And Davidson said he thought it “odd” that Alito “tried to make this point about Greece.”

“Sometimes, it just seems like they’re playing with you,” said Davidson.

“I was surprised that they focused so much at the beginning about this millennia this or that –that’s not how you decide the law. That’s not the basis for constitutional jurisprudence,” said Abby Rubenfeld, former legal director for Lambda Legal and one of the attorneys representing plaintiffs from the Tennessee case.

Rubenfeld said she was pleasantly surprised to hear Chief Justice Roberts ask “an interesting sex discrimination question.”

In questioning John Bursch, special assistant attorney general for Michigan, Roberts said he wasn’t sure it was necessary to get into the issue of sexual orientation discrimination to resolve the case.

“If Sue loves Joe, and Tom loves Joe, Sue can marry him and Tom can’t,” said Roberts. “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Bursch said laws banning same-sex couples from marrying do not treat classes of men and women differently. And, he said, a 2001 Supreme Court ruling in Nguyen v. INS held that “it’s appropriate to draw lines based on sex if it’s related to biology.”(Justice Kennedy wrote that 5 to 4 majority opinion, saying a law that provided citizenship to children if their biological mothers were American, but not if only their fathers were American, was unconstitutional.)

Ginsburg interjected that the reason behind that sex discrimination was that “we know who the [biological] mother is” and the was intended to avoid the possibility that a man might claim to be the father of a child just to gain some benefits.

If the state bans on same-sex marriage were seen as sex discrimination, the court would impose a higher standard of judicial scrutiny than mere rational basis. Laws disadvantaging people based on gender must be justified with –not just a rational reason but—an important governmental interest. Interestingly, there was little else discussed about what level of scrutiny the court should apply in deciding the issue of the state bans.

Evan Wolfson, head of the national Freedom to Marry organization, said Justice Kennedy’s questions “invited our advocates to make the case about the newness and relative evolution” of the issue.

“He also asked key questions about the kids. He pointed out the illogic of some of the state’s positions. And at the end of the day,” said Wolfson, “arguments are arguments and what counts is what they’re going to go back and do, read these briefs, and write the arguments, build on the law, and write the opinion. And Justice Kennedy has a long and serious legacy to build on here and I hope he does the right thing.”

The wait and see begins

Today’s argument concerned bans in four states –Kentucky, Michigan, Ohio, and Tennessee, but the decision will impact nine other states that currently enforce bans against same-sex marriage. If the court upholds the bans, another 10 states that had to temporarily suspend their bans could reinstate them.

Today, same-sex couples can obtain marriage licenses in 37 states. In June, if the court strikes down the bans, that could quickly become 50.

The court might split the baby and decide states can ban same-sex marriage but must recognize marriage licenses lawfully obtained in marriage equality states.

On NBC’s Meet the Press Sunday, Ted Olson, who argued the Proposition 8 case against California’s ban on same-sex marriage in 2013, said he doesn’t believe the Supreme Court will issue such a split decision. And if the court follows the precedent of Loving v. Virginia, it won’t do a split. That 1967 decision said that state laws banning marriage between persons solely on the basis of racial classifications violated the 14th Amendment’s guarantees of equal protection and due process. The question now is whether state laws banning marriage between persons solely on the basis of sexual orientation –or sex– violate the 14th Amendment’s guarantees of equal protection and due process.

The Supreme Court will most likely take until the end of June to issue its decision. Until then, legal scholars and media will analyze the two-and-a-half-hours of argument April 28 to find clues for how each justice is leaning on both questions posed and to speculate how the majority will rule.

The fact that six justices agreed last year not to hear appeals from states seeking to keep their bans still has many court observers predicting a victory for marriage equality. (It takes the support of at least four of the nine justices to take an appeal. The court did not take an appeal until it accepted the appeal of plaintiffs challenging the same-sex marriage bans.) The fact that Kennedy has written three of the court’s decisions treating LGBT people with respect gives marriage equality supporters hope that he’ll forge the majority once again. But his historic support for state sovereignty and his recent bond with the conservative justices to strike down the Voting Rights Act, saying the states “retain broad autonomy,” give hope to those who support the state bans.

Meanwhile, the Washington Post reported last week that its poll with ABC found 61 percent support, 35 percent oppose, 4 percent had no opinion. Essentially that same percentage also opposed allowing individual states to ban same-sex marriage. NBC reported Sunday that its poll with the Wall Street Journal found 59 percent of Americans support marriage equality– up 18 points over 2009.

Copyright ©2015 Keen News Service. ALL RIGHTS RESERVED.


In just a over a month or so, we will know once and for all if America will live up to her promise of freedom, justice and equality for all.

"Fear Eats the Soul"

"Same Gender Loving People - No. 2002"

"With Love You're Never Really Out On A Limb..."

Positive images of people like me... The truth of the matter is that we all need to see people like ourselves. So everyday, I'll post a photo, drawing or some other artwork that depicts Same Gender Loving People as what we are... Only Human.

"The Artist's Corner..."

"Figure Study"
Oil on panel
John S. Tarantola

Tuesday, April 28, 2015

"Gay PDA Is Okay!"

"Let Love Be Like Sunshine In The World... Live Fearlessly"

"The Final Chapter Is Now Being Written..."

"I have decided to stick with love. Hate is too great a burden to bear."

~Martin Luther King Jr.


Oh, freedom, Oh, freedom,
Oh freedom over me.
And before I'd be a slave
I'd be buried in my grave
And go home to my Lord and be free.

No more weepin,(don't you know), no more weepin,
no more weepin over me.
And before I'd be a slave
I'd be buried in my grave
And go home to my Lord and be free.

Oh freedom,
Oh, freedom, Oh, freedom,
Oh freedom over me.
And before I'd be a slave
I'd be buried in my grave
And go home to my Lord and be free.

And before I'd be a slave
I'd be buried in my grave
And go home to my Lord and be free.

"We Were Always There..."

"We knew paper moons were for lovers..."

"A Little Sane Advice..."

Ways To Make Your Relationship More Romantic

They say that romance is the key to any good relationship, but so many of us are clueless about how it works! Most people think of doing something romantic for their partner, but can't pinpoint exactly what to do. These are 10 ways to show your partner that you care and that you know that romance counts.

1. Morning Surprises 

Try to make your morning time special by making coffee for your partner while they are still in bed, or even make them breakfast in bed if you have time! This gesture will make your partner feel important and cherished.

2. Show Affection At Every Opportunity

When you come home at the end of the work-day, make sure that you give your loved one a long hug and kiss. This will make you both feel more deeply connected to each other throughout the evening and into the coming days. It is also good to touch your partner affectionately throughout the day and not only when you want to be romantic to show that you always care about them.

3. Make Time During the Week

Set aside special time for the two of you, even during the week. Plan a romantic outing or dinner for your partner after work, get a room at a hotel, or make sure the kids are out of the house for the night. Only the anticipation of being together will add a romantic spark to your love life.

4. Give Them Your Full Attention

Make sure to try and give your partner 100 percent of your attention when they want to talk to you about something. Peel your eyes away from the T.V. or put down what you are reading and face your partner and say "What would you like to talk about?" This will make your partner feel important and show that you are ready and willing to listen to what they have to say.

5. Compliments!

Make the effort to tell your partner that they look beautiful, handsome, sexy or great. Everyone needs a bit of encouragement sometimes, and the person that your partner most wants to hear it from is you.

6. Keep Looking Forward

Before you leave for work in the morning, tell your partner that you are looking forward to seeing them when you return. Don't leave the house without acknowledging your partner and telling them "I love you", no matter the circumstances.

7. Little Gifts to Cheer Them Up

Next time you go out shopping, look for little 'surprise gifts' for your partner that you know he or she would like. Next time they are feeling down, give them one of the gifts and see how they perk up. This act of kindness will uplift you and your partner with love, and they will remember it fondly for a long time to come.

8. Offer to Help Them Out

If your partner is having a tough day, offer to make them dinner or take them out for a drink. If they usually do the cooking they will welcome the change and thank you for your effort to help them unwind.

9. Be spontaneous!

Rent a convertible and take your partner for a surprise ride around town, or drive to the beach. Such a romantic and simple gesture will show your partner that you are thinking of them and their happiness. Of course, you can be as extravagant as your want, but know that your partner will appreciate anything you do for them.

10. Step It Up

If you want to be really romantic, fill the house with candles and rose petals and surprise your partner when they come home. Tell them to cancel any plans for the night because you two will be in for the night.

Lastly, don't forget, romance leads to a fulfilling love life when you really mean it!


"Fear Eats the Soul"

"The Views To Love..."

Nothing short of freedom will do...

"This Is Why Marriage Matters..."

Kentucky’s Same-Sex Marriage Fight
A portrait of two families with differing views of the same-sex marriage argument in Kentucky. The state’s gay marriage ban is one of four being considered by the Supreme Court on Tuesday. 
By PBS Newshour on April 28, 2015. 

"Same Gender Loving People - No. 2001"

"Love Is Freedom's Greatest Promise..."

Positive images of people like me... The truth of the matter is that we all need to see people like ourselves. So everyday, I'll post a photo, drawing or some other artwork that depicts Same Gender Loving People as what we are... Only Human.

"Our Historic Day In Court..."

Lawyers Seek Sea Change on Gay Rights at Supreme Court

Adam Liptak
April 27, 2015

WASHINGTON — In the months leading to Tuesday’s Supreme Court arguments on same-sex marriage, teams of gay rights lawyers and their allies have held countless strategy sessions, drafted scores of briefs and participated in intense moot courts.

Their relentless preparation has two goals. One is to win. The other is to win big.

“Many roads lead to marriage,” said Susan Sommer, a lawyer with Lambda Legal. “But some roads would be even better than others.”

The lawyers scoured the transcripts of arguments in earlier gay rights cases, honing answers to questions that had thrown other lawyers. They visited the Supreme Court to observe unrelated cases, taking in the rhythms of the questioning and assessing the justices’ habits of mind.

At the moot courts, they peppered the two lawyers who will argue for their side with tough, sarcastic questions modeled on the ones Justice Antonin Scalia is prone to asking.

Should the Supreme Court rule that there is a constitutional right to same-sex marriage, as many expect it to, the decision could be narrow or broad. Gay rights groups are hoping to secure not only the right to marry but also a symbolic and practical victory that would transform the status of gay Americans, affirming their dignity and protecting them from other kinds of government discrimination.

Same-sex couples outside the Supreme Court on Monday in advance of arguments on marriage to be heard on Tuesday. Credit Stephen Crowley/The New York Times
There are many ways to write an opinion in favor of same-sex marriage. The justices can choose between two commands to the states, two constitutional provisions and two levels of constitutional scrutiny. In every case, gay rights groups say, the correct decision is: both.

When the Supreme Court agreed to hear four cases challenging bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, it took the unusual step of drafting two questions for the parties to address, setting aside argument time for each of them.

The first is whether states must allow same-sex couples to marry, which will be the subject of a 90-minute debate on Tuesday. The second is whether states must recognize same-sex marriages performed elsewhere, which will be debated for an additional hour.

As a practical matter, a positive answer to either question would effectively allow all same-sex couples to marry. But gay rights groups very much want to establish a right to marry in every state, and they worry that the court may settle for the incremental step of requiring states to honor marriages from outside their borders.

“While many can travel to another state to marry, others lack the good health or financial means to do so,” Walter Dellinger, a former acting United States solicitor general, wrote in a brief he filed on behalf of Freedom to Marry. “For such couples, denying a license in the state in which they reside amounts to an outright denial of the freedom to marry.”

Mr. Dellinger added that the half-measure of requiring states to recognize out-of-state marriages would carry with it a “badge of inferiority.”

But the recognition-only approach may seem attractive to some of the court’s more conservative members, notably Chief Justice John G. Roberts Jr. Such an approach could follow from the court’s 2013 decision in United States v. Windsor, which did not compel any states to issue marriage licenses to same-sex couples but did require the federal government to recognize marriages from states that allow such unions.

In hoping to win on both questions, gay rights lawyers are taking a belt-and-suspenders position. Even if gay and lesbian couples are allowed to marry in their home states, Robert A. Long wrote on behalf of a group of prominent law professors, they “will be at risk of continued hostility if this court does not make clear that states may not discriminate against couples who have married in another jurisdiction.”

Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, will urge the Supreme Court to strike down four states' marriage bans. Credit Haraz N. Ghanbari/Associated Press
Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, will urge the justices to strike down the marriage bans. But his position is more measured than that of the plaintiffs.

In his Supreme Court brief, Mr. Verrilli pressed arguments in favor of same-sex marriage based solely on equal protection principles, while gay rights advocates have also advanced the argument that marriage is a fundamental constitutional liberty guaranteed to all couples.

The Constitution’s equal protection clause requires the government to have reasons for treating people differently. Its due process clause protects some fundamental liberties, including those listed in the Bill of Rights, procreation, sexual intimacy, abortion and at least opposite-sex marriage.

Mary L. Bonauto, one of the lawyers who will argue on behalf of the plaintiffs on Tuesday, said her clients would rather not settle for half a loaf. “We think that both equal protection and liberty are at play here, and they’re both bound up together,” she said.

A decision based on equal protection would have more practical muscle in other areas of the law. But it would be a symbolic blow to gay rights for the court to stop short of saying directly that gay couples have a right to marry.

When the court struck down bans on interracial marriage in 1967, it relied on both constitutional principles. But the most ringing sentence in the court’s decision concerned liberty.

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” Chief Justice Earl Warren wrote then.

But a 2003 decision striking down a Texas anti-sodomy law split the majority, with five justices basing their votes on liberty and one on equal protection.

Mary L. Bonauto
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free...
Jim 8 hours ago
Every weighty issue before the Supreme Court would be greeted with interest and intelligent speculation among the citizens if the highest...

Writing for the five justices, Justice Anthony M. Kennedy explained their thinking. “Were we to hold the statute invalid under the equal protection clause,” he said, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”

Gay rights lawyers are also hoping for another victory, one that would also help their cause in realms beyond marriage. It would require the Supreme Court to take a step it has so far resisted: saying that laws discriminating against gay people are subject to the heightened judicial skepticism that applies to ones drawing distinctions based on race or gender.

“The court has an opportunity,” Ms. Sommer said, “to make explicit that laws and government actions targeting gay people do not deserve to be presumed constitutional and to require the government to justify their discrimination. Such a ruling would speed an end to the discrimination that has plagued gay Americans for decades.”

Many laws draw distinctions between different classes of people. People under 21 are not allowed to buy beer. Rich people are subject to higher tax rates. People without medical training cannot work as doctors.

If such ordinary laws are challenged on equal-protection grounds, courts merely require the government to justify them with a rational reason. That is an extremely forgiving standard.

The Obama administration’s brief seemed implicitly to concede that the marriage bans challenged in Tuesday’s cases could survive such “rational basis” review, arguing instead that they should be struck down using a more demanding form of judicial scrutiny. In their Supreme Court brief, lawyers defending Ohio’s same-sex marriage ban called the administration’s position a revealing departure from that of the couples challenging the ban.

Gay rights groups would be happy to win under any standard, and they say there are no rational reasons for the bans. But they would also welcome a searching standard of review that they could use to combat other kinds of government discrimination.

A ruling requiring heightened scrutiny “would put the movement in the strongest legal position to challenge other state, local and federal laws that disadvantage gays,” said Brian T. Fitzpatrick, a law professor at Vanderbilt University.

David A. Strauss, a law professor at the University of Chicago, said gay rights groups were unlikely to get everything they want. “The court is likely to write an opinion that is long on majestic generalities and short on policy specifics,” he said, “and then leave it to the states and the lower courts to work out the implications.”

Lawyers defending the same-sex marriage bans are making less complex calculations than their opponents. They say the court should rule in their favor or, at a minimum, put the issue to rest.

“We hope we will have clear and final resolution of whether the courts or the people will decide this question,” said John J. Bursch, a Michigan lawyer who will argue in favor of the marriage bans, which resulted from legislative action and ballot measures. “The very worst outcome would be to leave people grasping at straws.”


Today will be a day of conjecture about what the Supreme Court will eventually decide in the matter of our freedom and equality under the law. While many (including me) believe there can be only one decision they can reach - that we are entitled as a matter of constitutional right to marriage equality, nothing can be sure until we get their decision in June.  In the meantime, my prayers for myself, my children and family and for millions like us will be for a decision that affirms the promises made in our nation's founding document...
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

"Fear Eats the Soul"

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