Mike Littwin: Mr. Attorney General, the gay marriage ship has sailed
What in the name of fundamental rights is Colorado AG John Suthers thinking?
July 31, 2014
In case you missed it, the 4th Circuit Court of Appeals has ruled that Virginia’s ban on same-sex marriage is unconstitutional. Yes, it’s big news, but it’s not exactly groundbreaking news. Not any more. Maybe not ever again.
According to NPR’s Nina Totenberg, that makes 29 consecutive rulings in favor of same-sex marriage. I don’t know what the record is — but I wonder if the Supreme Court really would be willing to snap the streak.
The rulings began a year ago after the Supreme Court shot down key sections of the Defense of Marriage Act. Every ruling since has determined that marriage is a fundamental right. Once you get into fundamental rights, that’s pretty much the beginning and end of the story.
We’ve heard the same stories from judges appointed by Obama, by both Bushes, by Clinton, by Reagan. This is about as bipartisan as you can get in modern-day America.
Mark Herring, Virginia’s attorney general, put it this way: “Sometimes battles have been fought in the legislature, sometimes in the courtroom, sometimes even in the streets, but inevitably no effort to restrict the rights or limit the opportunities of our fellow Americans has ever succeeded in the long term.”
But no civil rights issue has moved so quickly through the courts — or so nearly unanimously. The point of the Virginia ruling was duly noted in bordering North Carolina, where the real news of the day happened. North Carolina also is covered by the 4th Circuit and has a same-sex-marriage ban similar to the one in Virginia. And so, seeing the ruling, North Carolina Attorney General Roy Cooper held a news conference to say his state was throwing in the towel on same-sex marriage. You know, before someone gets hurt.
Cooper explained that attorneys general across the country have made “almost every possible legal argument” in dozens of cases and that the courts “have rejected them each and every time.”
“So,” he concluded, “it’s time for North Carolina to stop making them.”
If you heard the news conference, you may have had the same question I had: If this is so clear to Cooper — that there are no new arguments to make — then what in the name of fundamental rights is our attorney general, John Suthers, thinking?
The 10th Circuit in Denver was the first U.S. Appeals Court to uphold a ruling that a ban on same-sex marriage was unconstitutional. That case was about Utah’s ban, but the 10th Circuit also covers Colorado and its ban. Maybe you can see a pattern. But Suthers apparently does not. He is not simply continuing the fight against same-sex marriage. He’s taking on all comers and, if necessary, all of them at once. I don’t know how big his staff is, but if there’s a courtroom anywhere in Colorado, Suthers is probably there.
Of course, all hell broke loose here when Clerk and Recorder Hillary Hall started issuing marriage licenses in Boulder County. By the time Denver began issuing them, chaos had set in. Two courts ruled Boulder could continue to issue licenses. The state Supreme Court ruled Denver should not. Yes, there was chaos, but what civil rights action doesn’t include at least a touch of pandemonium? And now Suthers is back trying to stop Hall again.
Suthers said it’s clear-cut. He said it’s his job to defend the Colorado law until the end, and that he thinks, despite all the rulings, that the law is constitutional. He’s ready to go to the U.S. Supreme Court, which will, of course, get the last word. And probably as soon as next year.
There’s cost, of course, and not just in court costs. It has been suggested that Suthers — who never has said publicly how he feels about same-sex marriage — might be running for another office (mayor of Colorado Springs, anyone?). And that as a Republican, it would help him to make this case. But I doubt very much it’s as simple as that.
This very public case can’t be very good for Colorado Republicans. In fact, it feeds directly into the Democratic contention — available in a campaign ad on a big-screen TV near you — that the state’s Republicans have a 21st-century social-issues problem, beginning with personhood and following all the way to same-sex marriage.
You can’t entirely avoid the politics in this, even if the judges seem to. The Virginia attorney general, who refused to defend his state’s law, is a Democrat. North Carolina’s Cooper is a Democrat. The South Carolina attorney general, a Republican, said he would continue to defend his state’s ban on same-sex marriage. There’s a pattern there, too.
But if you read the 4th Circuit ruling, a 2-1 decision, the judges made the Virginia case particularly hard to defend. It took us back to the days of racial segregation and back to the 1967 Loving v. Virginia ruling, in which the Supreme Court upended Virginia’s ban on interracial marriage.
In his opinion, Judge Henry Floyd said it was no different today for gay couples who wish to marry.
“Denying same-sex couples this choice,” Floyd wrote, “prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”
It’s a difficult argument to defeat. Which is how you get 29 wins in a row.