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Same-sex marriage ruling could affect R.I.

The Supreme Court could overturn R.I.’s civil unions and determine if states can legalize marriage

City & State Editor
Tuesday, April 2, 2013

(Text by Adam Toobin / Herald)

As the national dialogue regarding same-sex marriage engulfs Rhode Island politics — including a marathon 12-hour hearing in the Senate Judiciary Committee two weeks ago — the Supreme Court heard a case last week that could render irrelevant the entire debate. For the first time in U.S. history, the Supreme Court is preparing to issue a decision about whether a state ban on same-sex marriage violates the Constitution.

The case dealt with whether Proposition 8, a voter referendum passed in California that reversed state judicial action allowing same-sex marriage, is unconstitutional. Legal experts may differ on the various ways the Supreme Court could rule, but they agree that the case has the potential to be a watershed moment for gay rights across the nation as well as in Rhode Island.

Rhode Island currently permits same-sex civil unions but not marriages. Civil unions provide the same rights and privileges to gay couples as marriages provide heterosexual couples under Rhode Island law.

Courtney Cahill, professor of law at Florida State University College of Law, wrote in an email to The Herald that the Supreme Court has five major options to consider when ruling on the case — two that directly affect Rhode Island. The Court could overturn Proposition 8 on the grounds that “marriage restrictions like it violate the federal Constitution on both equal protection and due process grounds,” Cahill wrote. In this instance, “all marriage restrictions in the United States will be struck down as unconstitutional, and same-sex marriage must be recognized nationally as a matter of federal constitutional law,” she wrote.

This outcome, though preferred by same-sex marriage advocates across the country, is also “the least likely,” Cahill wrote. Analyses of the oral arguments — held last Tuesday — in both the New York Times and the Washington Post echoed Cahill’s belief that the Court is more likely to issue a narrow ruling than one that requires all 41 states without same-sex marriage to adopt it.

The hearings arrived in the midst of a number of prominent endorsements of same-sex marriage from national leaders, adding to a sense, voiced in media and on television across the country by advocates of same-sex marriage, that the time is ripe for the federal government to extend the right to marry to gay couples. Two weeks before the Court heard the case, Sen. Rob Portman, R-OH, became the first Republican senator to endorse same-sex marriage since then-senator Gov. Lincoln Chafee ’75 P’14 endorsed same-sex marriage before he left office in 2007.

The Court could also rule that same-sex civil unions, which are offered in California and Rhode Island, are unconstitutional. This outcome — known as the “eight-state ruling,” because it would overturn civil union statutes in eight states — would not prevent those states that currently offer civil unions from passing laws that define marriage as between one man and one woman. States with civil unions could essentially nullify the effect of the Court’s ruling.

President Obama endorsed the “8-state ruling” in an amicus brief that his administration filed with the Court before the hearings.

These two rulings would both bring same-sex marriage to Rhode Island, but the Court has other plausible alternatives, including upholding the constitutionality of state bans on same-sex marriage.

The ambiguity regarding the Court’s decision led prominent critic of same-sex marriage in Rhode Island Bishop Thomas Tobin of the Roman Catholic Diocese of Providence to ask the state senate not to take up the issue until the question of constitutionality is settled. Advocates of same-sex marriage dismissed Tobin’s argument. “With all due respect to His Excellency, neither case before the Supreme Court has any bearing on the decision of the General Assembly to make marriage available to all loving, committed couples in Rhode Island,” said Reverend Gene Dyszlewski, chair of the Rhode Island Religious Coalition for Marriage Equality.

Besides upholding the constitutionality of Proposition 8, the Court could rule that “Proposition 8 was unconstitutional because it violated the federal Equal Protection Clause to give marriage rights and then take them away,” Cahill wrote.

The Court could also rule that “Proposition 8’s (legal) defenders lack standing under the federal Constitution to appeal this case to the Supreme Court,” Cahill wrote. This outcome would overturn Proposition 8, legalizing same-sex marriage in California but nowhere else. California’s governor declined to defend Proposition 8, aruing that it is unconstitutional. Former Federal District Court Judge Vaughn Walker, who originally overturned Proposition 8 before the case arrived at the Supreme Court, used this argument to justify his decision.

The Supreme Court also heard arguments in a case about the constitutionality of the Defense of Marriage Act, which established the federal definition of marriage as between one man and one woman. As a result gay couples who have received weddings in states that have legal same-sex marriage are not eligible to receive any federal marriage benefits, including the ability to file joint tax returns and receive health care coverage under a spouse’s plan, The Herald previously reported.

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  1. All these smart intelligent Lawyers are wrong. Let me tell you how they should rule it and it is Not one proposed by them. Most will shrug it off and call me clueless. This Court should take the drastic measure of throwing the whole case out. Thrown out and render a far reaching and the only Logical one. They could start off by declaring that Homosexuals have no “standing” in Court. They are only a ‘claim to be’ person. A homosexual cannot prove to this Court or any Court that are Homosexual. There is no known method to prove an intangible. It is an abstract, ethereal and vacuous entity which cannot be detected and defined, so completely unknown. Why then that they have to come “out” to be known. Why is it unknown to even Parents like Mr. and Mrs. Rob Portman’s Son Will, 19 years living with them and they were ‘surprised’. NFL Player Harris “outing” himself now that He is retired. Unknown to teammates. Gays Marry and have Children with Straights, unknown. They can lie even to this Court and be unknown and somehow never asked for Proof. No proof should be no “standing”. This is only the first of Reasons. Next of major concern is the Ruling that this very Court Ruled in “Loving v. Virginia” 1967. The Court ruled that Marriage is a basic Civil Right. When they ruled that a Black Man has a Right to Marry a White Woman. The Male/Female Formula. It then said, that Marriage is “fundamental to our existence and our survival”. They have said in essence, that the Male/Female Formula gives birth to our existence and assures our survival. Since there is no other Formula that can do this, and the entity that matches this Formula is our Marriage today. The Formula is Compelling to maintain for our Survival, our Civilization and mankind. Since no other Formula exist, Homosexuality is moot. And Lastly. There is no difference between recognizing a Religion or Orientations. Both are intangibles and abstract. There are many Religions and there are many Orientations. They both have beliefs of an intangible entity. One believes in the Supernatural and the other the Unnatural. Both cannot provide proof of their belief. It is ethereal and vacuous with no real substance to detect.The entity is known but the Identity is unknown and indiscernible. They both have followers and believers But now the difference. Religion is not recognized, and given Rights and Benefits and is Separate from our Govt. Orientations which is similar, should NOT be recognized and respected and given Rights and Benefits. Govt cannot separate Religion and embrace Orientations. The First Amendment. That is why the whole case should be thrown out. Pity.

    • Jon English says:

      Proof is relative, the proof of gravity is relative yet we still hold to be true. The proof of being gay is relative the same as many things, there is more to life than the tangible, there is relativity. The fact is that we no longer need to have children to survive, we have survived so your argument that we need heterosexual marriage to propagate our population in order to survive is invalid. The basis of marriage on our society is love, we marry those that we love not because we need to have children or do you not believe in love because it can’t be proven? The fact that you only belief in what can be proven with tangible evidence is sad and not a way to live life.

    • That’s actually why the court is so hesitant to make any sweeping ruling. There simply is no scientific proof that homosexuality is genetic or in any way an unchangeable biological trait. Searches for the “gay gene” have failed.

      I don’t feel that gays should be screwed over when filing taxes. They should be able to include their partners in wills, but I do not feel they should be allowed to be called “married” (rather, they should be “partnered” or in civil union). Gays can get their equal rights without having to be called “married”. If they need the word “marriage” on a certificate to adequately love one another, then what they have to begin with probably isn’t love.

      Frankly, if it can’t even be proven that “gay” is a way someone is born, then denying the right to be called “married” isn’t a violation of anyone’s rights. And furthermore, there is much evidence to support homosexuality being an acquired or otherwise learned behavior (a lifestyle, not birth condition). For instance, there’s the existence of ex-gays (I know one, who is now married to a woman and has kids). Ex-gay men and women have written books, and have testimonies all over the internet, yet none of them are widely publicized because the media knows all too well that what people WANT to hear is that “gay is the way you are born”.

      • Just wrote all that, and clearly invest so much time on an issue that will happen. Gay marriage will pass. On a daily basistruck load of elected leaders, senators, and polls are in favor of gay marriage. The youth and future generations are overwhelmingly in favor of gay marriage. The tide has already turned on this issue, and frankly, I feel so bad for people really engaged on the anti gay marriage side. They are literally aging themselves over something that will be a done deal within 15-20 years. And I say this as a straight, catholic, latina. Some of us can just see the writing on the wall, and are perfectly fine with it. Keep on writing your tirades as though they’ll put a halt on this national snow ball gay marriage momentum.

        • Since when does not having the popular belief mean that my beliefs don’t matter? Never pity the underdogs. If it weren’t for people taking the time to think through issues for themselves (rather than to jump on a bandwagon), America could easily run itself off a cliff. With no opposition, any bad decision would blow up in everyone’s faces. I’m sticking with my beliefs regardless of what the rest of the country thinks.

    • Wayne Peterson says:

      Just think….we have no proof that you have a brain, and even you have never seen it. In fact, your essay suggests strongly it is absent!

  2. Marriage is a religious instrument. Therefore, government recognition of any marriage or any marriage rights in American law is prohibited under the “establishment of religion” clause of the 1st Amendment.

    The “free exercise” of religion clause of the 1st Amendment prohibits the government from 1.) forcing a religion to perform a same-sex marriage, and 2.) preventing a religion from performing a same-sex marriage.

    The constitutional basis for the conclusion above is discussed in my article, “Opinion: Marriage Rights and the US Constitution” at:

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