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NYT: In Same-Sex Marriage Calculation, Justices May See Golden Ratio


Kevin Slater
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When the court struck down bans on interracial marriage in 1967, such unions were still illegal in 16 states.

 

When the court struck down laws making gay sex a crime in 2003, 13 states still had antisodomy measures.

 

Should the court take up the question of same-sex marriage this term or next, as it seems likely to, the unions will be against the law in no more than 15 states.

 

http://nyti.ms/1ri3CJf

 

Kevin Slater

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When the court struck down bans on interracial marriage in 1967, such unions were still illegal in 16 states.

 

When the court struck down laws making gay sex a crime in 2003, 13 states still had antisodomy measures.

 

Should the court take up the question of same-sex marriage this term or next, as it seems likely to, the unions will be against the law in no more than 15 states.

 

http://nyti.ms/1ri3CJf

 

Kevin Slater

 

Interesting.

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As the article also points out, though, unlike in the case of laws against interracial marriage and sodomy, where state law changed as a result of the actions of state legislators, here much of the change has been driven by federal court decisions. While one of the purposes of the Bill of Rights is to protect disfavored groups and individuals against the tyranny of the majority, the Court is also legitimately concerned that nine unelected judges with life tenure not undermine the democratic process and that the Court not get too far out in front of public sentiment. When it does, things happen like what happened after the decision in Roe v. Wade and the years of acrimony, confrontations at abortion clinics, and the occasional murder of abortion providers in the name of saving lives.

 

It's likely that a majority of the Court -- Justices Ginsburg, Kagan, Sotomayor, Breyer, and Kennedy -- believe that prohibition of same-sex marriage is unconstitutional, but I doubt they want to make that decision anytime soon. In that regard, I suspect they privately groaned when the Sixth Circuit made its decision. However, I'm sure the justices and their clerks are as good at reading the polls as well as the rest of us; they know that the opinion of the electorate on this issue has changed significantly now that same-sex marriage is legal via legislative enactment in some states and the world hasn't ended. But I also suspect the Court is tired of stepping in and making decisions on social issues because of legislative gridlock and political cowardice. I don't know if they are ready to take the heat off of legislatures yet again over this issue.

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There's another aspect to the same sex marriage issue which has gotten little attention - the push by Corporate America. Many large companies offer same sex couples the same benefits as opposite sex couples. There was no doubt the cost of administration was huge, but, until a study was done this summer, no actual cost was available. See the links below for information about the study and high level effects on business.

 

The following is adapted from a colleague's Facebook Post -

https://www.facebook.com/hashtag/costofinconsistency?source=feed_text&story_id=10152893344649456

 

 

As part of this year's Out & Equal Summit, several colleagues from Oliver Wyman presented a compelling report on the $1.5 billion cost to the private sector of inconsistent marriage laws in the US (link below). Setting aside the obvious ethical argument for marriage equality, this report adds further weight to the already mature business case underpinning the fight for marriage equality, workplace equality and LGBT rights more broadly. The business world has long understood that workplace equality drives value from multiple angles, be it business development, cost effectiveness, recruitment and retention. Even if you don't feel strongly about the social justice apsect of this debate, consider its impact on our economic competitiveness. Consider that seventeen countries, among them several economic powerhouses in the EU, have fully recognized the freedom to marry and are avoiding imposing nonsensical costs on their businesses as a result of a patchwork quilt of marriage laws. ‪#‎OESummit2014‬ ‪#‎costofinconsistency‬

 

http://www.oliverwyman.com/…/pro-bono-program/the-cost-of-i…

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