Thoughts in a Haystack

On Tuesday, Federal District courts in two more states, Mississippi and Arkansas, struck down same-sex marriage bans. I thought it a nice touch that they came in time for Thanksgiving.

For once, I'll skip the descriptions of the plaintiffs. Suffice it to say that, between the two cases, they consist of four lesbian couples who have been in committed relationships of between 5 and 11 years. Three of the couples are raising young children and one partner in each relationship is denied parental rights because of the same-sex marriage bans. All of the couples are denied the right to share such things as medical insurance benefits and survivor's benefits earned by one partner because they are not "married" in the state's eyes.

Among the interesting things about these decisions is that the judge in Arkansas applied the "strict scrutiny" (the highest) test to determine if the state's law passed 14th Amendment muster, while the judge in Mississippi, who found that he was bound by 5th Circuit Court of Appeal precedent, applied the "rational basis" (the lowest) test, though he thought that "heightened or intermediate scrutiny" should apply. The courts that have struck down such bans have been all over the map on that issue.

If I am right that Chief Justice Roberts is loathe to go down as the Roger B. Taney of the 21st Century and is willing to join in finding a constitutional right for gays to marry, he may well assign himself the task of writing the majority opinion, specifically for the purpose of ruling that same-sex marriage bans fail the rational basis test, at least as long as the cautious Justice Kennedy will go along with that. The reasons for that are somewhat Machiavellian.

If a majority of the Court was to find that same-sex marriage bans were subject to heightened or, worse (from a conservative standpoint) strict scrutiny, it could be precedent not only for any other cases involving sexual orientation and/or gender identity, but for any disfavored minority. Immediate results might be that Federal and state prisons could no longer house transgender prisoners in institutions limited to the prisoners' biological gender. Nor could those prisons deny transgender prisoners treatment for their medically-recognized condition and would have to pay for gender reassignment treatment, including surgery. Public schools across the country would have to accommodate transgender students as to bathroom facilities, sports activities, etc.

Conservatives, meet Can of Worms.

But if there were six votes to uphold same-sex marriage but only four concurring justices wanted to apply a higher standard of scrutiny, the decision would not, at least immediately, force other courts to apply higher scrutiny in such cases.

The judge in Mississippi also had a nice section on how discrimination against blacks in the civil rights era paralleled with discrimination against gays. However, the gays got it not just from racial bigots but from blacks who should have known what it was like to be a hated minority and from liberals who somehow forgot their principles when it came to someone's sexuality. Right Wing Watch has a nice summary of that here.

Two more bricks on the bigots' load ...

Let's hope Albert Mohler was in hiding and survived the day. A couple of weeks ago he began gobbling quite loudly and may have attracted the attention of those looking for a holiday entree.

He was waxing theocratic about the recent rendezvous with and landing on Comet 67P/Churyumov–Gerasimenko, in an orbit 316 million miles from Earth, by the European Space Agency's Rosetta spacecraft and its Philae lander. He noted that the mission traveled 4 billion miles over 10 years, conducting a number of slingshot maneuvers and matching the comet's 40,000 mph speed. His conclusion is that the success of the comet landing was dependent on science built on a Christian worldview.

Those earliest scientists who gave birth to modern science in the Western world believed, specifically, that the cosmos was intelligible – that it is intelligible, that is to say understandable – because they believed that it was created by an intelligent, sovereign, supreme creator that reflects His own glory and intentionality in the cosmos. In other words, they believed that the cosmos was intelligible precisely because it was created and it wasn't an accident. They would have had very little confidence that the world would've been intelligible if it was just a cosmic accident. There was something else to their understanding; that was the continuity and the stability of natural laws. Those early scientists and the science upon which this Rosetta project is still based is established upon the premise that there are continuing physical laws in the universe that operate basically in all places, at all times and can be counted upon to operate regularly. Now where does that confidence come from?

In early science in the Western world the early science that gave birth to the high technologies we know now, the confidence was that those stable regular laws were indeed stable and regular precisely because there was a sovereign God who is exercising His providential care over this cosmos. Now modern secular science tends to think of itself as pervasively secular and in terms of those who are practicing it, there is often a very determined effort to make the science as secular as possible. But science will not remain as secular as the secular mind intends it to be. The very fact that the cosmos is intelligible, the very fact that the regularity these natural laws were exactly what was dependent upon by those researchers who launched this probe and now celebrate it's landing, those are actually still pointing to the fact that the universe is regular and intelligible for a reason; it's not regular and intelligible by accident. In other words, there is a profound testimony to the reality and the existence not only of a God but of a God who created the cosmos and is still actively involved in his providential care over it; even in these headlines. But you're not going to be getting that from the secular press, but Christians ought to be very careful not to miss that point in these headlines.

But wait a minute! Just a few years ago, in a speech and article entitled "Why Does the Universe Look So Old?", he was singing a different song. When it comes to the age of the Earth and in defense of a "Biblical" young Earth, he maintained that "general revelation" (by which he means the empiric evidence of the universe, or science) cannot trump the "special revelation" of the Bible.

... I want to suggest to you that it is our responsibility to give an answer when we are asked the question "Why does the universe look so old?" ... I want to suggest to you that the most natural understanding from the scripture of how to answer that question comes to this: The universe looks old because the creator made it whole. When he made Adam, Adam was not a fetus; Adam was a man; he had the appearance of a man. By our understanding that would've required time for Adam to get old but not by the sovereign creative power of God. He put Adam in the garden. The garden was not merely seeds; it was a fertile, fecund, mature garden. The Genesis account clearly claims that God creates and makes things whole.

In other words, Mohler retreats to Philip Henry Gosse's Omphalos. How is the universe intelligible to science if there is an omnipotent God who might, for reasons unknowable to science, "cook the books" by making the world appear different than it actually is. Those early scientists assumed that the empiric evidence would confirm their Biblical views but that isn't how it worked out. So that "Christian worldview," instead of being the basis of modern science, picked up its marbles and walked away.

The tide keeps rolling in no matter how many King Canute wannabes there may be out there.

South Carolina, after the Supreme Court, once again, refused to stay a lower court decision overturning a same-sex marriage ban, has begun to process same-sex marriage licenses.

Montana, not having gone the route of seeking a stay, is also beginning same-sex marriages. Here's where it gets particularly interesting to me:

As many as four deputies in the Yellowstone County Clerk of District Court's office have indicated their unwillingness to issue wedding licenses for same-sex couples, and for now they won't have to.

Kristie Lee Boelter, clerk of Yellowstone County District Court, said Friday that one deputy has religious objections. That deputy — and the three others who say they also object — won't be required to issue the licenses, she said. Boelter said that decision was made on direction from county Human Relations Director Dwight Vigness after consulting with the County Attorney's office.

Fortunately, there are sixteen other deputy clerks:

"I have been told," Boelter said, "that I can't require (deputy clerks) to issue licenses. Right now it's not a problem, because we have enough deputy clerks willing to do this."

That doesn't mean Boelter agrees with the directive.

"It is my responsibility to uphold the law and follow the law," Boelter said Friday morning. "My directive to deputy clerks who took the same oath I did is to follow the law or we have issues.

"In my opinion, some of those same religions (objecting to the issuance of marriage licenses to same-sex couples) also disagree with divorce, and yet we deal with many divorce cases in this office," Boelter said. "I don't think that's fair." ...

One deputy clerk, Darryll Broadbrooks, a 57-year-old gay man, said his colleagues' refusal to issue the licenses hurt, "because being gay is who I am." ...

Boelter called Broadbrooks an asset to the office, saying his positive attitude "has given us a needed shot in the arm."

"I rely on a lot of the people I work with. This is my family, and I spend most of my waking hours with these people," Broadbrooks said. "They're people who I thought would be there for me, but now I think maybe some of these people would not be there for me."

"I'm not going to turn around and judge them," Broadbrooks said. "We live in a free country. But I do think marriage equality is a big step forward." ...

"The majority of the staff is supportive of (the judge's) order and are following it," [Boelter] said. "I said to (the deputy clerks), 'Guys, we took an oath. This is what I was elected to do, and we will issue licenses to same-sex couples according to the order.'"

Boelter said she believes "there will be a lot of tension in the office because of this. I would like this to blow over, but I don't think it will.

"If you are going to be in turmoil, this is not the job for you," Boelter said. "You have to be thick-skinned to work in this office. We have cases where children are being abused, where women and men are abused in divorce cases. We need to learn to separate our personal feelings from the job."

Kristie Lee Boelter ... you are my new favorite county clerk and a credit to your profession!

There is a nice article by Doug Kendall and Brianne Gorod entitled "Judge Sutton's Loving Problem" at Constitution Daily, deconstructing Judge Jeffrey Sutton's recent Sixth Circuit Court of Appeals opinion upholding same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee. As can be easily guessed from the title, the authors focus on the famous Loving v. Virginia case.

... There are a lot of problems with Judge Sutton's opinion, but one in particular makes clear why his decision can't stand when the Supreme Court ultimately rules on marriage equality: If Jeff Sutton is right, Loving v. Virginia is wrong.

There are few Supreme Court cases that are as universally celebrated today as Loving v. Virginia ...

It's difficult to read Loving as anything other than a strong endorsement of a broad right to marriage equality in the Constitution. The Fourth Circuit, for example, relied in large part on Loving to conclude that "the Supreme Court has demonstrated that the right to marry is an expansive liberty interest," and it noted that Loving and other Supreme Court cases "speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right." The Seventh Circuit, in an opinion written by Judge Posner, noted that Wisconsin's argument that tradition supported its ban on same-sex marriage "runs head on into Loving."

Yet Judge Sutton treats Loving as a museum piece—an interesting historical artifact from the twentieth-century—rather than a binding precedent of the U.S. Supreme Court that can be trusted to guide his decision making in the twenty-first century. Indeed, in a 42 page opinion, Sutton dismisses Loving in barely more than a page. He acknowledges that Loving held that "'marriage' amounts to a fundamental right," but nonetheless concludes that "the right to marry in general . . . nowhere appear[s] in the Constitution." Apparently to Sutton, the right to marry is fundamental, but not to be trusted. Sutton continues by declaring that when the Court decided Loving, "marriage" was understood to be between a man and a woman, and "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage." It did not, he writes, "create a new definition of marriage," and so it is wrong to "transform the fundamental-rights definition of Loving under the old definition into a constitutional right under the new definition." But given the history of anti-miscegenation in this country, it could also have been said that before Loving, the definition of marriage was limited to a man and woman of the same race, and Loving changed that definition. Sutton's analysis amounts to a roundabout way of saying that although Loving does recognize that "the right to marry" exists in the Constitution, he just doesn't think it's a right that should be enjoyed by same-sex couples. ...

It's particularly ironic that Judge Sutton was willing to give so little deference to Loving given that he was willing to defer to the Supreme Court's one-line order in Baker v. Nelson, which dismissed "for want of a substantial federal question" an appeal from a state court decision upholding a same sex marriage ban. As Judge Posner noted in the Seventh Circuit's marriage equality case, Supreme Court precedent no longer binds lower courts when there have been intervening changes in the doctrine, and "Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned." ...

It's disheartening that Judge Sutton was so willing to follow the essentially defunct Baker and so unwilling to follow the still vibrant Loving. Because if Loving is right, Jeff Sutton is wrong.

There are other legal technicalities addressed that make reading the whole article worthwhile but the gist of it is right, true and just ... unlike Judge Sutton's decision.

A brief note:

On November 10, Justice Sonia Sotomayor granted a temporary stay to the State of Kansas to prevent the immediate implementation of same-sex marriages in the state.

This was similar, indeed, legally speaking, identical, to what happened back in October with Idaho's request for a stay on same-sex marriage. Then, Justice Kennedy granted a temporary stay which, after submissions, was immediately dissolved by the full court. No dissents were noted. It seemed a routine "Yes, yes ... we'll listen to you but now go away" exercise.

Between the Idaho and Kansas requests, however, the Sixth Circuit came down with its decision upholding same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee.

The stay in Kansas' case was also dissolved when submitted to the full court ... but with two, and only two Justices dissenting. Unsurprisingly, the dissenters were Justice Scalia and Justice Thomas.

Now here is where the reading of SCOTUS tea leaves gets tricky and why it such a dangerous profession: the previous order dissolving the Idaho stay didn't note any dissents but this time, after the Sixth Circuit's decision, dissents were noted ... but by only two Justices.

Does this tell us anything about what will happen when the court, it now seems inevitably, decides the issue? Could we have a 7-2 ruling in favor of same-sex marriage as a constitutional right? I've long suspected that Justice Roberts doesn't want to be known as the 21st Century's Roger B. Taney. Could Justice Alito now be willing to hold his nose and, based on precedence, as in Lawrence, Windsor and Loving, be willing to go along?

Oh, well, only time will tell.
__________________________________________________

Update: Lyle Denniston at SCOTUSblog has some more information on the Court's tea leaves. Specifically:

In a separate opinion they [Justices Thomas and Scalia] issued in a case having nothing to do with the marriage controversy, Justice Thomas wrote that, “for reasons that escape me,” the Court had not agreed to review lower court decisions striking down state bans on same-sex marriage laws.

I'll piously pass over the "for reasons that escape me" straight line and just suggest you go read Denniston's post.

Mat Staver, who Ed Brayton has called the dumbest lawyer in America not named Larry Klayman or Orly Taitz, has apparently decided to outpace his rivals. I think he may have succeeded!

As Right Wing Watch reports:

After the Republican gains in last week's election, right-wing activists immediately sent a letter to Senate Republicans urging them not to re-institute the 60-vote threshold for overriding filibusters against judicial nominees when they take control of the Senate in the next term, after Democrats eliminated it through the so-called "nuclear option" last year.

Among those who signed on to the letter was Liberty Counsel's Mat Staver, who discussed the importance of banning the use of the filibuster on today's "Faith and Freedom" radio broadcast by asserting that doing so would somehow teach the Democrats a lesson by forcing President Obama to now nominate more moderate judicial candidates. ...

"The Democrats wanted to hurt America by taking it away," Staver said, "and putting in these radical nominees. Now they're going to have the live with the medicine. They're going to live with what they did. We shouldn't re-institute it on these judges and this will help us block these radical judges. Obama is either gonna not be able to appoint anybody to the bench or he's going to have to moderate and bring some people in that are not these radicals that he's been putting on the benches across the country" ...

Of course, the entire point of doing away with the filibuster was because Republicans, who were in the minority, had been using it to routinely block the Democratic majority in the Senate from confirming President Obama's judicial nominees. They went so far as to use the filibuster to prevent President Obama from filling any vacancies on the critically important D.C. Circuit Court, and vowed to continue to do so regardless of who he nominated.

Next term, the Republicans will be in control of the Senate and will be able to block the confirmation of Obama's judicial nominees simply by virtue of being the majority party. The likelihood of Democrats seeking to block any of President Obama's judicial nominees is virtually nonexistent, so maintaining the ban on the use of the judicial filibuster will literally have no impact whatsoever.

Well, there will be one impact ... when Staver finally realizes that he is standing in mid-air and falls to the desert floor below!

As pointed out by Lyle Denniston at SCOTUSblog, Chief Judge Robert C. Chambers of Huntington, West Virginia, on Friday formally nullified the state's ban, even though the state had conceded that the Fourth Circuit's decision overturning Virginia's ban applied to West Virginia and had allowed same-sex marriages to begin in the state.

Judge Chambers, however, like Judge Martha Craig Daughtrey, took issue with the Sixth Circuit's decision by Judge Jeffrey Sutton that upheld bigotry against gay people as long as enough people hated them. It is only a footnote (which I think is all Judge Suton's decision deserves) but, stripped of the legal technicalities, it is a fine summary:

The Sixth Circuit in DeBoer v. Snyder ... reached the opposite result. The majority there noted two rationales in support of the marriage bans. ... First, the court found the marriage bans in Kentucky, Michigan, Ohio, and Tennessee to be rooted in the States' interest in regulating procreation by providing incentives for parents to remain together. ... But the opinion then conceded that this view of marriage can no longer be sustained, that marriage now serves "another value—to solemnize relationships characterized by love, affection, and commitment." .... Denying marital status and its benefits to a couple that cannot procreate does nothing to further the original interest of regulating procreation and irrationally excludes the couple from the latter purpose of marriage. Second, the majority in DeBoer implores opponents of the marriage bans to proceed slowly, through the legislative process, and justifies the bans by asserting the States' right to take a "wait and see" approach. ... This approach, however, fails to recognize the role of courts in the democratic process. It is the duty of the judiciary to examine government action through the lens of the Constitution's protection of individual freedom. Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states. Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators.

As a footnote of my own, I know this blog was originally one about the so-called evolution/creationism "debate." I've spent much more time here, over the last year or more, on the issue of marriage equality. Sorry. But this is the great issue of civil rights in my (blogging) lifetime. I can no more ignore it than I could have the run up to and aftermath of Brown v. Board of Education. If my old friends aren't interested, I understand, and, as always, wish you well.

James David Manning may be the most ridiculous far right religious figure in America today (and imagine the competition for that title in a country that also contains Gordon Klingenschmitt, Rick Wiles and Bryan Fischer!).

His latest (you can watch it above if you have the stomach for it) is that, as Right Wing Watch puts it:

He managed to link a recent small protest outside of his church, where two people handed out Starbucks coffee, to “homosexual sodomite” Dr. Craig Spencer, the New York man who contracted Ebola in Guinea (and who has a girlfriend).

“Starbucks is a place where these types frequent and a lot of body fluids are exchanged there and Ebola,” Manning said, warning that Starbucks has been “taking specimens of male semen and they were putting it in the blends of their lattes.” He added: “My suspicion is that they’re getting their semen from sodomites. Somebody has discovered that semen like cord blood has millions of little zygotes in it and flavors up the coffee, and makes you thinks you’re having a good time.”

The "zygotes" in semen (Tom S is going to love that reversion to the homunculus theory) are important because "drinking Starbucks is some sort of a sacrificial ritual bath where they kill the innocent babies and drink their blood in some of these meetings that are had by these fraternal or sorority groups."

This is "the absolute truth" because the website Inquisitr reported on it. The only problem is that Inquisitr's article said the story was "[o]riginally written by Huzlers," a site that has the disclaimer:

ABOUT US

Huzlers.com is a combination of real shocking news and satirical entertainment to keep its visitors in a state of disbelief.

Indeed, Inquisitr followed up with a story about Manning's claim that ended:

James David Manning used the Inquisitr as a source, specifically the article questioning if Starbucks uses semen samples in their coffee beverages nationwide, and that an FDA investigation is being initiated. He went on to say he believes that Starbucks does use semen samples, and even made a reference on how Coca-Cola formerly used cocaine as an ingredient in their soda pop. The only issue with his claim is that his source concludes their report that Starbucks does not use semen in their coffee beverages, and the site that originally reported such a claim is known for satire news.

There's no stupid quite like the stupid for God!

... to the SCOTUS side ...

In a move that could hardly be called surprising but which is, nonetheless, disappointing, a three judge panel of the Sixth Circuit Court of Appeal has reversed a number of District Court cases that had invalidated bans in Michigan, Kentucky, Ohio and Tennessee of same-sex marriages or recognition of same-sex marriages lawfully conducted in other states.

Judge Jeffrey Sutton, who wrote the majority decision, had signaled during oral arguments that he might vote to uphold the bans. I had rather hoped that the decision by Judge Richard Posner, probably the most influential American judge not on the Supreme Court, that came down between the Sixth Circuit's oral arguments and today's decision, might have made Judge Sutton rethink his position. Despite Judge Posner pissing from a great height on all the arguments against same-sex marriage, Judge Sutton held fast to his position in the schoolhouse door ... sorry, county clerk's office door.

Lyle Denniston of SCOTUSblog more than adequately summarizes the "rationale" of the majority. Boiled down to its essentials and stripped of some legal technicalities concerning a one-sentence SCOTUS decision in Baker v. Nelson in 1972, it is Justice Scalia's majoritarianism. Despite the fact that the 14th Amendment reads, in relevant part:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

... Justice Scalia maintains that women, those who want to marry people of a different race and LGBT people are not "persons" or "citizens" for purposes of the Constitution because the people who first used those words hadn't thought through what they were saying.

It is not that Judge Sutton appears unsympathetic to gay people or their wish to be married, he is upholding the idea that courts should "go slowly" and defer to the "wishes of 'the' people" as to the "traditional" definition of marriage. One could only imagine his reaction to "traditional" Jim Crow laws ...

I'd like to give you some large chunks of the dissent of Judge Martha Craig Daughtrey (with the technical citations omitted), which I think any rational person would agree with:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is "who should decide?"—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority's resolution of these questions based on its invocation of vox populi and its reverence for "proceeding with caution" (otherwise known as the "wait and see" approach), I dissent.

In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win "the hearts and minds" of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children's schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.

Readers who are familiar with the Supreme Court's recent opinion in United States v. Windsor ... and its progeny in the circuit courts, particularly the Seventh Circuit's opinion [by Judge Posner] in Baskin v. Bogan ... ("Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children."), must have said to themselves at various points in the majority opinion, "But what about the children?" I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit "within which children may flourish," they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.

Indeed, with the exception of Ohio, the defendants in each of these cases—the proponents of their respective "defense of marriage" amendments—spent virtually their entire oral arguments professing what has come to be known as the "irresponsible procreation" theory: that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to provide for "unintended offspring" by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of same-sex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony. But, as the court in Baskin pointed out, many "abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married." ... How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be "channeled" into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, "Go figure."

[I told you Posner pissed on those arguments from a great height but it takes quite a bit to make a Federal judge of Posner's standing, even if he is known to be irascible, to mock the claims of state governments quite so openly.]

... the Baskin court noted that estimates put the number of American children being raised by same-sex parents at over 200,000. ... "Unintentional offspring are the children most likely to be put up for adoption," ... and because statistics show that same-sex couples are many times more likely to adopt than opposite-sex couples, "same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters." ... Moreover, "[i]f marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents." ...

And, as I have said so often, the stories of the very real people in these cases are the heart and soul of the matter:

... Two of the Michigan plaintiffs, April DeBoer and Jayne Rowse, are unmarried, same-sex partners who have lived as a couple for eight years in a home they own together. They are both trained and employed as nurses, DeBoer in a hospital neonatal department and Rowse in an emergency department at another hospital. Together they are rearing three children but, due to existing provisions in Michigan's adoption laws, DeBoer and Rowse are prohibited from adopting the children as joint parents because they are unmarried. Instead, Rowse alone adopted two children, who are identified in the record as N and J. DeBoer adopted the third child, who is identified as R. All three children had difficult starts in life, and two of them are now characterized as "special needs" children. N was born on January 25, 2009, to a biological mother who was homeless, had psychological impairments, was unable to care for N, and subsequently surrendered her legal rights to N. The plaintiffs volunteered to care for the boy and brought him into their home following his birth. In November 2009, Rowse completed the necessary steps to adopt N legally.

Rowse also legally adopted J after the boy's foster care agency asked Rowse and DeBoer initially to serve as foster parents and legal guardians for him, despite the uphill climb the baby faced. ...

The third adopted child, R, was born on February 1, 2010, to a 19-year-old girl who received no prenatal care and who gave birth at her mother's home before bringing the infant to the hospital where plaintiff DeBoer worked. R continues to experience issues related to her lack of prenatal care, including delayed gross motor skills. She is in a physical-therapy program to address these problems.

Both DeBoer and Rowse share in the responsibilities of raising the two four-year-olds and the five-year-old. The plaintiffs even have gone so far as to "coordinate their work schedules so that at least one parent is generally home with the children" to attend to their medical needs and perform other parental duties. Given the close-knit, loving environment shared by the plaintiffs and the children, DeBoer wishes to adopt N and J legally as a second parent, and Rowse wishes to adopt R legally as her second parent.

I spit on your vox populi or any need to "go slowly"! Those children need all the help our society can give them ... not some day ... over the rainbow ... but now ... in concrete ways that only giving their parents ... their only true parents by any rational definition ... all the rights that parents should have! ...

The bench trial lasted for eight days and consisted of testimony from sociologists, economists, law professors, a psychologist, a historian, a demographer, and a county clerk. ... Gary Gates, a demographer, and Vivek Sankaran, the director of both the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University of Michigan Law School, together offered testimony painting a grim picture of the plight of foster children and orphans in the state of Michigan. For example, Sankaran noted that just under 14,000 foster children reside in Michigan, with approximately 3,500 of those being legal orphans. Nevertheless, same-sex couples in the state are not permitted to adopt such children as a couple. Even though one person can legally adopt a child, should anything happen to that adoptive parent, there is no provision in Michigan's legal framework that would "ensure that the children would necessarily remain with the surviving non-legal parent," even if that parent went through the arduous, time-consuming, expensive adoption-approval process. Thus, although the State of Michigan would save money by moving children from foster care or state care into adoptive families, and although same-sex couples in Michigan are almost three times more likely than opposite-sex couples to be raising an adopted child and twice as likely to be fostering a child, there remains a legal disincentive for same-sex couples to adopt children there. ...

To counteract the testimony offered by the plaintiffs' witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs' experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study:

[Dr. Regnerus's opinions] do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that the findings from Dr. Regnerus'[s] work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families. ...

After discussing the decisions in the Fourth, Seventh, Ninth and Tenth Circuits, Judge Daughtrey goes on to say:

These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts' decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. ...

Ouch!

The majority's "original meaning" analysis strings together a number of case citations but can tell us little about the Fourteenth Amendment, except to assure us that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967. Despite a civil war, the end of slavery, and ratification of the Fourteenth Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not by the democratic election process to which the majority suggests we should defer regarding discrimination based on sexual orientation. ...

The principal thrust of the majority's rational-basis analysis is basically a reiteration of the same tired argument that the proponents of same-sex-marriage bans have raised in litigation across the country: marriage is about the regulation of "procreative urges" of men and women who therefore do not need the "government's encouragement to have sex" but, instead, need encouragement to "create and maintain stable relationships within which children may flourish." The majority contends that exclusion of same-sex couples from marriage must be considered rational based on "the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended children." As previously noted, however, this argument is one that an eminent jurist has described as being "so full of holes that it cannot be taken seriously." [Judge Posner again] ...

At least my colleagues are perceptive enough to acknowledge that "[g]ay couples, no less than straight couples, are capable of sharing such relationships . . . [and] are capable of raising stable families." The majority is even persuaded that the "quality of [same-sex] relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment." All of which, the majority surmises, "supports the policy argument made by many that marriage laws should be extended to gay couples." But this conclusion begs the question: why reverse the judgments of four federal district courts, in four different states, and in six different cases that would do just that?

There are apparently two answers; first, "let the people decide" and, second, "give it time." ...

The second contention is that we should "wait and see" what the fallout is in the states where same-sex marriage is now legal. The majority points primarily to Massachusetts, where same-sex couples have had the benefit of marriage for "only" ten years—not enough time, the majority insists, to know what the effect on society will be. But in the absence of hard evidence that the sky has actually fallen in, ...

[I like that allusion!]

... the "states as laboratories of democracy" metaphor and its pitch for restraint has little or no resonance in the fast-changing scene with regard to same-sex marriage. Yet, whenever the expansion of a constitutional right is proposed, "proceed with caution" seems to be the universal mantra of the opponents. The same argument was made by the State of Virginia in Loving. And, in Frontiero v. Richardson ... the government asked the Court to postpone applying heightened scrutiny to allegations of gender discrimination in a statute denying equal benefits to women until the Equal Rights Amendment could be ratified. If the Court had listened to the argument, we would, of course, still be waiting. One is reminded of the admonition in Martin Luther King, Jr.'s "Letter from Birmingham Jail" (1963): "For years now I have heard the word "Wait"! ... [But h]uman progress never rolls in on wheels of inevitability .... [and] time itself becomes an ally of the forces of social stagnation." ...

Finally, there is a need to address briefly the subject of unconstitutional animus, which the majority opinion equates only with actual malice and hostility on the part of members of the electorate. But in many instances involving rational-basis review, the Supreme Court has taken a more objective approach to the classification at issue, rather than a subjective one. Under such an analysis, it is not necessary for a court to divine individual malicious intent in order to find unconstitutional animus. Instead, the Supreme Court has instructed that an exclusionary law violates the Equal Protection Clause when it is based not upon relevant facts, but instead upon only a general, ephemeral distrust of, or discomfort with, a particular group, for example, when legislation is justified by the bare desire to exclude an unpopular group [individuals with intellectual disabilities] from a social institution or arrangement. ...

To my mind, the soundest description of this analysis is found in Justice Stevens's separate opinion in City of Cleburne:

In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a "tradition of disfavor" by our laws? What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? In most cases the answer to these questions will tell us whether the statute has a "rational basis." ...

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to "administer justice without respect to persons," to "do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States." ... If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Sorry for the length of this but it is a fine, strong dissent that deserves more attention than it will get in the popular media. It leaves the majority opinion gasping in its dust and will, I hope, cement Justice Kennedy's and (just maybe) Justice Roberts' will to do the right thing!