Box Turtle Bulletin

Mind-NOMingly boring rally in Harrisburg

The National Organization for Marriage must be dispirited by the recent rulings for marriage equality. But they can take hope from their latest stop on their Tour of Mostly-Empty City Plazas. Because in Harrisburg, PA, they got more than a couple dozen supporter and – for the first time in a long time – outnumbered the counter-protesters. The Tour Tracker is reporting that NOM’s supporters numbered about 75 as compared the 53 protesters.

But those were probably the only rays of light in an otherwise dull and gloomy day.

The Trial Tracker reports today’s rally to be particularly dull and uninspiring. That may well be due to the growing realization on the part of NOM’s leaders that they are ineffectual and, at this point, just going through the motions.

And so far NOM’s Summer for Marriage blog is choosing to pretend as though there was no rally today. Instead, Brian Brown is ranting about Judge Walker’s decision to deny a stay on his motion.

When a lower judge makes an unprecedented ruling, that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision, and let the higher courts decide in an orderly fashion that respects the rule of law, if he’s right, or if he’s way off-base. Judge Walker’s ruling is more evidence he is not a neutral referee, he’s an activist on this issue. He doesn’t even want his ruling ignoring Supreme Court precedent and imposing gay marriage against the expressed wishes of the electorate appealed to the Ninth Circuit…

The Proponents, in their appeal to the denial of stay, also make a great deal about this “existing Supreme Court precedent.” You’ll notice that Brian Brown is not providing much information about this precedent, other than to demand that it trumps Perry v. Schwarzenegger. And that’s probably because it is a case from 1971.

In May 1970 Jack Baker and James McConnell applied for a marriage license in Hennepin County, Minnesota. They were denied. They sued and lost at district court and in appeal at the Minnesota Supreme Court. They appealed to the US Supreme Court but the SCOTUS did not hear their appeal for “want of a substantial federal question.”

Normally, a refusal to hear a case is not considered precedent on the merits of the case. However, anti-marriage activists argue because that this case came to the Court through mandatory appellate review, then therefore it is by default a judgment on the merits of the case and establishes precedent which all lower courts must follow for perpetuity.

The Proponents also discuss Adams v. Howerton, a 1982 immigration case in which the Ninth Circuit ruled that Adams and his same-sex non-legal husband were not married and that the Federal Government has a rational basis for refusing to recognize this marriage.

But while relying on those cases may have been valid in, oh say 1984, it hardly lends itself to ranting indignation in this case.

Since that time, Romer v. Evans has determined that an initiative cannot be designed solely to disadvantage a class of people and Lawrence v. Texas determined that a state cannot legislate based solely on moral disapproval of a class of people. It was not necessary that these two cases deal with gay issues for them to apply to Perry v. Schwarzenegger, but it does make them impossible to ignore.

Another case that Brown likes to reference – but which is ignored by the Proponents – Citizens for Equal Protection v. Bruning. This was a 2006 ACLU challenge to Nebraska’s DOMA constitutional amendment. A lower court found it to be an unconstitutional violation of the Equal Protection Clause, but the Eighth Circuit reinstated the ban. I am not certain why both Judge Walker and the Proponents have not referenced this case.