Wednesday, July 30, 2014
A three judge panel of the Fourth Circuit Court of Appeals has now upheld Judge Allen's decision in a 2-1 vote.
That now makes some 29 straight court decisions, Federal and state, that have found bans of same sex marriages to be invalid. I wish the Yankees had anything near that winning streak.
Judge Allen, in a nice touch, opened her decision with a quote from Mildred Loving, the plaintiff in Loving v. Virginia, that struck down laws, incredibly a mere 47 years ago, against interracial marriages:
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. ... I support the freedom to marry for all. That's what Loving, and loving, are all about.It is historic resonance that Judge Allen and the Fourth Circuit have now recognized the same injustice done by Virginia to same sex couples.
There are some interesting technical arguments in the majority decision but the bottom line is that the Fourth Circuit majority found that such laws must be measured by "strict scrutiny," the highest constitutional test but that "even under rational basis review, the "[a]ncient lineage of a legal concept does not give it immunity from attack."
Ultimately, I don't think it will matter much for bans on same sex marriage which test is applied ... it fails all of them, as various courts have found. It will matter for other issues, such as attempts to "protect" Christians from anti-discrimination laws that deny them the right to discriminate against gays. But that's down the road a bit.
One interesting event is that the attorney general of North Carolina has said that his office would no longer defend his state's ban on same-sex marriage, because the Fourth Circuit decision had taken away all of the arguments that could be made for the ban. That's not quite true. Decisions by 3 judge panels of a Circuit Court are not really binding precedent unless confirmed by the full court in an en banc decision or the full court refuses to grant an en banc review. Still, it's nice some people see the writing on the wall.
Saturday, July 26, 2014
Forsake Flanders Fields
innocents fallen from the sky
children in the hundreds kidnapped
many die because some die and vice versa
pitilessness piles on pitilessness
the poppies row on row
mark only hatred
we are the dead
Friday, July 18, 2014
He isn't one anymore.
He explains, at length, how that came about at The Panda's Thumb.
In his last post, he makes an interesting observation:
Activists like Dawkins make the mistake of accepting fundamentalism's claims of validly representing the Bible in particular and religion in general. But fundamentalism's claims are simply false. As I stated before, creationism botches literary and biblical criticism just as badly as it botches science. Don't ever make the mistake of attacking a creationist's faith; if you do so, you're simply reinforcing their misconception that evolution is synonymous with atheism. Read the explanations given by theistic evolutionists. Ask questions like, "How do you know your interpretation of the Bible is correct? How do you know that Genesis should be treated as chronological narrative? How would the original audience have understood it? Why wasn't your interpretation a majority view throughout Christian history?" Be prepared to explain the history of creationism.OMG! Accommodationism!
Of course, this is anecdotal evidence. But that is all the anti-accommodationists offer to "show" that "accommodationism"* fails.
Neither side has demonstrated that it is the "best" way to approach YECs with science or that the other way should be abandoned.
* Depending on what definition of "accommodationism" is current.
Thursday, July 10, 2014
Brains Are Raining in Colorado Springs
It is the usual fare. The judge reviewed the three levels of scrutiny under which the constitutionality of state statutes are judged, strict scrutiny, heightened scrutiny and rational basis. Judge Crabtree noted:
The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.The judge noted that the legislative history of the state's statutory ban and the state constitutional ban did not show any serious intent to encourage procreation or marital commitment. Therefore:
The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against same-sex marriages created "post hoc in response to litigation." Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident—the parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.As someone who has, on occasion, had to argue in defense of the indefensible, I have a certain professional admiration for this argument by the state:
Government [indorsement of] marriage is meant to try to fight the instinct to create children without remaining committed to their upbringing into adulthood. This problem is not caused by same-sex couples, at least not to any significant extent, and the state thus need not extend this part of its solution to them.Inasmuch as gays who are parents tend to remain committed to raising their children into adulthood, the state has no need to grant them the rights and privileges of marriage?
No doubt heads are exploding right now in Colorado Springs, home to many Religious Right organizations, such as Focus on the Family. If you live in the area, you might want to take an umbrella today.
Wednesday, July 02, 2014
Ultimately, the rational is familiar. Judge Heyburn is among those who have found that anti-same-sex legislation and/or state constitutional amendments cannot meet the lowest form of constitutional scrutiny: "rational basis."
But, as I keep saying, over and over, the real power of these decisions does not reside in the fine legal points or the judges' rhetorical flourishes. It is the story of the people who are being denied equality before the law. These are the human beings behind all the shouting in Kentucky:
Timothy Love and Lawrence Ysunza reside in Louisville, Kentucky and have lived together for 34 years. On February 13, 2014, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They allege that their inability to obtain a marriage license has affected them in many ways. For example, last summer, Love underwent emergency heart surgery, which had to be delayed in order to execute documents allowing Ysunza access and decision-making authority for Love. As another surgery for Love is imminent, the couple fears what will happen if complications arise. The couple fears that healthcare providers and assisted living facilities may not allow them to be together or care for each other as they age. In addition, the couple has had difficulties with professional service providers; they found out after they purchased their home that their real estate attorney disregarded their request to include survivorship rights in the deed.Those who think they are being "marginalized" for their religious beliefs are missing the point. Good, decent, loving people like Timothy Love, Lawrence Ysunza, Maurice Blanchard and Dominique James have been marginalized all their lives and no one ... no one ... has been able yet to give a rational basis why. Go on believing what you will, keep saying what you believe ... but when it comes to the law, leave them alone ... let them be equal.
Maurice Blanchard and Dominique James reside in Louisville, Kentucky and have been together for ten years. On June 3, 2006, they had a religious marriage ceremony in Louisville. On January 22, 2013, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They too have faced challenges as a result. For example, they allege that their neighborhood association will not recognize them as a married couple because Kentucky does not allow them to marry. In addition, their inability to obtain parental rights as a married couple has deterred them from adopting children. They also share a number of Love and Ysunza's concerns.