Pro-gay marriage argument counters action by Wyoming lawmakers

When the U.S. Supreme Court hears arguments today in one of the most important civil rights cases it will ever decide, Wyoming will be represented by legal arguments on both sides of the same-sex marriage issue.

Both are friend-of-the-court briefs. One is a scholarly argument in favor of extending same-sex marriages to all states based on the principles of liberty, equality and human dignity.

The other throws together as many half-baked legal claims as it can against allowing gays and lesbians to marry, apparently hoping one will stick in the justices’ minds.

Guess which one is from members of the Wyoming Legislature?

Sixteen of the most extreme right-wing lawmakers in the state — all but one in the Wyoming House — banded together to offer the latter brief in a last-ditch effort to “save” us from same-sex marriage. I’ll name them all later, but the effort is led by freshman Rep. Cheri Steinmetz (R-Lingle).

Steinmetz was endorsed in 2014 by WyWatch Family Action, a Cheyenne-based anti-abortion organization. The lawmakers’ amicus brief has the group’s fingerprints all over it, although I’m sure it had help.

In a news release, Steinmetz said she wanted to ensure Wyoming had a voice in the case. It does with her brief, but it’s a wholly misguided voice spoken by only a small minority of the 90-member Legislature.

“This issue before us today is not whether same-sex marriage is right or wrong,” Steinmetz claimed, totally unconvincingly. “It is an issue of state authority over marriage and the ability of the citizens of Wyoming to self-govern.”

The document, written by Torrington attorneys Herbert Doby and Nathaniel Hibben, does claim this challenge to four states’ ban of same-sex marriage is a states’ rights issue. But it’s a thinly disguised legal argument that has as its basis the same disdain — many might say hatred — for gay rights these extremist legislators have always espoused.

These 16 lawmakers comprised the core of the Republican House contingent that successfully killed a bill earlier this year that would have added sexual orientation and gender identity to the list of classes protected against job and housing discrimination. These representatives used the obscene notion people have the absolute right to discriminate against gays and lesbians if their very existence offends the sensibilities of the religious right.

They essentially try to make the same argument to the high court by claiming that not allowing states to ban gay marriage violates citizens’ freedom of speech. Really? Joe and Jim can’t marry because it violates the free speech rights of Bill and Betty, the heterosexual couple who live next door? How exactly does that work?

While they were able to convince a legislative body such an irrational fear is justified, the same court that decades ago threw out bans on interracial marriage for the same reason simply isn’t going to buy it. The attorneys for these state lawmakers realize the justices aren’t going to vote against gay rights based on anyone’s religious opposition.

In addition to not violating the separation of church and state, the high court knows there has been a huge shift in Americans’ attitude toward same-sex marriage in the past few years.

In short, a generation that viewed homosexuality as abhorrent and sinful is literally dying off, replaced by one that is, fortunately, more tolerant of people’s differences. This younger generation believes what the far-right continues to shout about but has never practiced: keep government out of our bedrooms.

So the 16 Wyoming legislators who signed the anti-gay brief had to focus on trying to make this a states’ rights issue and hope the court will suddenly forget the Constitution’s commitment to equal rights under the law.

Wyoming lawmakers contend “denying recognition does not take away marriage rights. It just refuses to recognize them in a particular state.” It’s the legal equivalent of a Three-card Monte game. “Watch my hands. Where’s your card? Nope, it’s over here. It still exists, but you lose.”

The brief concludes “the staggering implications” of the petitioners’ claims “starkly illustrate their foundational flaws.”

How so? Their constitutional theory “would effectively require each state to conform its marriage policy to the varying marriage policies enacted in other states,” the brief asserts. “That, in turn, would terminate states’ ability to serve as ‘laboratories’ that independently experiment with domestic relations (and other social) policy.”

They may be trying to fool the justices, but we all know that in Wyoming, any state “laboratory” to study same-sex marriage would have a “closed for business” sign. In fact, it would never even open, if this group gets its way.

Fortunately, there’s another, much less publicized Wyoming connection to the marriage equality case that takes a totally different view. I only learned about it from a release by the University of Wyoming News Service, which didn’t get much play around the state.

UW Law Professor Noah Novogrodsky and Sam Forshner, a UW College of Law International Human Rights Clinic student, recently went to San Francisco to work on an amicus brief that argues for extending same-sex marriage to all 50 states.

The UW pair collaborated on the brief with Ruth Borenstein and Marc Hearron, partners with Morrison and Foerster LLP. The brief, which uniquely focuses on the global impact the Supreme Court’s ruling will have on the issue, was signed by a group of six leading foreign and comparative law experts.

Forshner, who researched similar cases and rulings on same-sex marriage in other countries, told the news service he examined other nations seen as “conservative,” like Wyoming, that have balanced civil, same-sex marriage with the rights of religious entities. The student also found cases in which people have been tortured and murdered for being in a same-sex marriage.

The brief states that “fundamental principles such as ‘liberty,’ ‘dignity’ and ‘equality’ are not solely American, but rather universal, concepts whose interpretation by other leading constitutional courts can inform [the U.S. Supreme] Court’s understanding of issues.”

“The Court’s ruling in this case will affect whether the United States continues to be seen as a global leader in the robust defense of personal autonomy and human dignity,” the brief concludes.

Novogrodsky explained, “We live in a globalized world and the court should be aware of the 20 foreign states that have embraced marriage equality and the reasons why.”

That’s information the Supreme Court should pay attention to, unlike the Hail Mary “states’ rights” play of lawmakers still incensed by a federal court’s rejection of Wyoming’s ban on gay marriage last fall.

As promised, here’s the all-GOP list of Wyoming legislators who filed their amicus brief:

Reps. Jim Blackburn and Harlan Edmonds, Cheyenne; Scott Clem and Roy Edwards, Gillette; Kendell Kroeker, Evansville; Gerald Gay, Bunky Loucks and Tom Reeder, Casper; Marti Halverson, Etna; Allen Jaggi, Lyman; Mark Jennings, Sheridan; Robert McKim, Afton; Garry Piiparinen, Evanston; Cheri Steinmetz, Lingle; Nathan Winters, Thermopolis; and Sen. Curt Meier, LaGrange.

After the high court hands down its ruling this summer, you should be able to easily recognize the state’s “Shameful 16” — they’ll be the ones crying in their beer. Meanwhile, if there’s any justice on this issue, Novogrodsky and Forshner will be clinking champagne glasses.

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