(As posted to my Gazette blog on May 23)
How much will the losing battle to oppress same-sex couples ultimately cost the American taxpayer?
One doesn’t have to be a member of the legal profession to wonder if there might be some major class-action lawsuits filed by members of the gay and lesbian community against U.S. states that have had their bans on same-sex marriage ruled by the courts as unconstitutional and tossed out.
Courts have essentially said that state referendums on the gay marriage issue should never have been held, that they were discriminatory, and unfairly denied same-sex couples equal civil rights.
In other words, states had no business dictating the parameters of loving relationships and the rights that come with them. Those states that did oppress — or still are oppressing — same-sex couples have caused them a lot of grief and suffering. And you have to think that there will be waves of class actions against those states seeking hundreds of millions of dollars in damages.
And perhaps criminal charges might be filed against government officials and some of the lobbyists behind the anti-same-sex marriage movements in the U.S.
Perhaps some states will get off easy — those that legalized same-sex marriage on their own initiative or those who didn’t put up much of a fight in the courts. But what about states like Utah and Montana that are still fighting against same-sex marriage, believing they do have the right to dictate the parameters of love and to deny same-sex couples equal civil rights — despite all the court rulings that say they are wrong.
It reminds me of people who stubbornly held on to the belief that segregation should be permissible during the fight to give equal rights to African Americans, and kept discriminating throughout the struggle.
I suspect that states like Utah and Montana will not get off so easily — that the legal fallout will be very expensive for taxpayers and for officials there.
I may be wrong. I’m not a legal expert. I welcome opinions from legal experts in the United States — and, yes, I know some do read this blog, because you have contacted me before with opinions.
Send them to me at jpage@montrealgazette.com, and let me know if they can be published here or not.
– Jillian
P.S. Readers here can post comments below.
Jillian Page 
I doubt there would ever be a “class action” suit. To be a class, you have to prove that the action was specifically targeted at a defined class. OK, that part is easy. Then you have to define the damage done in terms of dollars. That may be provable, but since it would range from nothing for the couple already cohabitant to several hundreds of thousands of dollars for the widowed partner who is denied tax advantages from a deceased spouse. Courts usually award an average damage to claimants if successful. Meaning, it could be $10 per couple. The hardest part would be getting a court to hear the case in the first place. As vile and unchristian (I.E. base evil) as they are, the politicians’ acts were legal at the time.
Class Action suits are only good for publicity.
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I wonder . . . if the bans are deemed unconstitutional, would that not mean they were illegal? The whole process was illegal, from the funding by anti-gay organizations to the actual referendums. And there are untold moral damages — discrimination that was felt in myriad ways, from schoolyard bullying to workplace bigotry etc. In other words, the bans and the people behind them spread hate throughout society, and its ripple effects are immeasurable. Surely there must be a way to make them pay, either through criminal charges or lawsuits. I mean, they committed serious acts of harm — kids have committed suicide because in no small part of the hate they the anti-same-sex marriage people fuelled.
Some of these big so-called family organizations should be held accountable for the suffering they have caused.
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The problem is that at the time of the actions, it was not specifically illegal. Horrifically cruel and stupid, but not illegal. The principal is that our constitution does not permit retroactive prosecution. This prohibits prosecuting someone, for example for spitting on the sidewalk on Monday when the law banning the activity wasn’t passed until Wednesday. King George – of England, not George Bush – was prolific in these kinds of prosecutions. Laws passed in England were retroactively prosecuted in the colonies, which is why it is in the Constitution.
The precedent comes from former slaves who sued their owners after the U.S. Civil War. The Supreme Court ruled that since slavery was legal at the time, no reparations were due.
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Interesting . . . I was thinking about the slavery issue.
So, the governor of Utah (for example), who is still fighting same-sex marriage even though he will most certainly lose — there is so much precedent — can get away with wasting taxpayers’ money and inflicting grief on LGBT people until the case is finally finished. It just doesn’t seem right . . . It seems like an abuse of power.
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On the other thread, I said that it’s all politics. As long as it entices low-information voters (I.E. people who watch Faux News, or Fox Spews) to the polls it will remain a hot button for the politicians. The politicians don’t care – it’s not their money and if it keeps them elected, they will keep up their tantrums.
But this boogeyman is running out of steam as more courts throw out the prohibitions and some Governors are seeing the futility of appeals.
See “Study Confirms That Fox News Makes You Stupid”:
http://readersupportednews.org/off-site-news-section/68-68/4280-study-confirms-that-fox-news-makes-you-stupid
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Good article about Fox. I can’t say I have ever watched any of their newscasts, but I have read some pretty questionable material on their site.
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Steve, the more I think about it, the more the mind boggles. The rulings are saying that the initial referendums were unconstitutional, therefore it is a retroactive ruling. The problem is, no one challenged it back when states were holding their referendums, thinking it was legal. But ignorance of the law — in this case, constitutional law — is not an excuse. It was unconstitutional — as well as morally reprehensible. It’s not like the constitution is suddenly being changed now. It is simply being upheld.
Wouldn’t it be treated then as any other crime would be treated: a murderer can still be prosecuted 10 or 20 years after the fact, for example.
I think there may be grounds for a class-action test case in, say, one state — the worst offender, whichever that is.
But, I am not a lawyer, which is why I asked for opinions.
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When the same-sex marriages were being denied by law, it *was* legal. The law making it illegal was declared unconstitutional. To succeed in a civil suit, one would have to prove that the group you are suing knew for a fact, in advance, that they were preparing an unconstitutional law. That’s a pretty steep challenge considering the level of stupidity among politicians. I have heard a politician say, when asked “isn’t the law you’re promoting unconstitutional?”, and this is a quote because I was there, “I don’t know, that’s for the lawyers to figure out”.
Murder is a poor analogy since murder has always been illegal and there is no statute of limitations on murder.
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Interesting . . . Pity somebody didn’t raise the constitutional issues long ago when the laws were originally enacted.
Good stuff, Steve . . .
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Actually, it was pointed out, many times. I was in California when the whole Prop8 fiasco started, and the opponents to Prop8 pointed out several times in their ads that it would violate the 14th Amendment. It was pointless because the Right Wing feeding their frenzy simply said that their lawyers assured them that Proposition 8 was completely legal and “Supreme Court Proof”.
Morons. All of them.
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