"Joy and pleasure are as real as pain and sorrow and one must learn what they have to teach. . . ." -- Sean Russell, from Gatherer of Clouds

"If you're not having fun, you're not doing it right." -- Helyn D. Goldenberg

"I love you and I'm not afraid." -- Evanescence, "My Last Breath"

“If I hear ‘not allowed’ much oftener,” said Sam, “I’m going to get angry.” -- J.R.R. Tolkien, from Lord of the Rings

Wednesday, October 19, 2016

The Death of a Thousand Cuts

That seems to be conservatives' response to the things they don't like about America -- like equal protection of the laws, stuff like that:

Fifty Republican members of the Texas Legislature have signed a court brief arguing that the same-sex spouses of government employees shouldn’t be entitled to health insurance and other benefits.

The “friend-of-the-court” brief was submitted Friday in a lawsuit brought by anti-LGBT activists against the city of Houston in response to then-Mayor Annise Parker’s decision to extend benefits to the same-sex spouses of city employees in 2013.

They argue that, while the Supreme Court's decision in Obergefell v. Hodges establishes that same-sex couples have the right to marry, it doesn't mandate that they are entitled to any of the benefits of marriage.

The primary question before the Supreme Court of the United States in Obergefell was whether or not same-sex couples had a constitutional right to marry.1 The Court did not create other rights, such as rights to spousal benefits or even the right to live with your spouse. Subsequent decisions by courts all over the country have affirmed the right to marry, but have refused to expand that right to everything associated with marriage. Post-Obergefell decisions have, for example, found that Obergefell did not invalidate the presumption of paternity statutes nor did it create a fundamental right to engage in homosexual activity or make homosexuals a protected class.

In agreement of the narrow holding of Obergefell, Justice Devine observed in his dissent from the petition for review: “Marriage is a fundamental right. Spousal benefits are not.” Justice Devine was right, and the appellate decision to the contrary must be reviewed and overturned.

Further, while the U.S. Supreme Court did purportedly create a new constitutional right to enter into same-sex marriage, nothing in that ruling compelled the taxpayers of Texas to pay for a vast array of benefits for same-sex spouses. Indeed, it would unnecessarily implicate constitutional issues of state sovereignty if Obergefell were misconstrued as imposing spending requirements on the state of Texas to fund expensive health care and other benefits without authorization by Texas law.

Conservatives' tendency to edit reality to conform with their own preconceptions isn't going to do them any good in this case. The Supreme Court's decision in Obergefell was based firmly on the Fourteenth Amendment's guarantee of equal protection. That means, in the simplest possible terms, that similarly situated persons must be treated the same under the law. In this case, a married couple is a married couple; there is no differentiation under the law for straight and gay couples. So, if straight couples are granted benefits under the law, then gay couples must be granted the same benefits. It's pretty unambiguous.

Amendment XIV, Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And do note the framing: the Court created a new right to same-sex marriage. That's like saying that Brown v. Board of Education created a new right for black kids to go to school. No, the Court did not create any new rights: it merely affirmed that same-sex couples are entitled to the same treatment as opposite-sex couples under the law. Note this, from the majority opinion in Obergefell:

For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
(Emphasis added.)

I guess, after they lose on this one, they'll manufacture a "religious freedom" argument.

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