Thoughts in a Haystack

Update: Boehner threw in the towel and brought a "clean" funding bill for the Department of Homeland Security to the House floor that did not include a provision attempting to defund President Obama's Executive Order that would provide limited deportation protections to as many as 5 million undocumented immigrants, where the bill passed with the support of a minority of Republicans and a majority of Democrats. Of course, to the Teabaggers, such as Rep. Tim Huelskamp (R-Kan.), "grassroots Republicans have been "double-crossed by the establishment" and "the Constitution was finally surrendered to the left." If only!

Al Mohler, president of The Southern Baptist Theological Seminary, is exercised about the report in the Chicago Sun-Times that, in the last year that same-sex marriage has been legal in the state of Illinois, "Same-sex spouses have been as young as 17 and as old as 93 ..."

Al opines that he "can understand how a 93-year-old could get legal permission to marry whether same-sex or otherwise in Cook County, Illinois, but how in the world are we now living in a situation in which at least one 17-year-old was legally married in a same-sex union in Cook County, Illinois in the last year."

You see,

From time to time one of the things we have to demonstrate about a false worldview is that it allows itself to have the phenomena of conflicting absolutes. That's one of the things that is very important about the Christian biblical worldview, we believe in absolutes but we don't believe in the possibility of those absolutes being in conflict with one another.

Absolutes ... in conflict? Like when Moses, barely off Mt. Sinai with the Ten Commandments, including "Thou shalt not kill," ordered the cold-blooded murder of, if the text is to be believed, some 30,000 young boys and male infants among the Midianite "little ones"?

Nope, no moral absolutes in conflict there! But Al insists:

[W]hen you're looking at the modern secular worldview there are conflicting absolutes and there's no question about it. And it comes up in a situation like this.

Where are the child protection advocates crying out against the crime -- or at least the abuse --of having a 17-year-old, according to their worldview, entered into a same-sex union by some kind of legal means in Cook County, Illinois in the year 2015? Most of those very same advocates point to some kind of marriage age such as that, even in a heterosexual union, as the evidence of some kind of social problem.

Well, the small problem is that, in Illinois, irrespective of whether it is a straight or gay marriage, the age of consent to marry is ... wait for it ... seventeen!

So, it is "child abuse" to allow "children" under eighteen to marry? Well, let's look (see link above) at some of the "godly" states:

Alabama: sixteen ...

Arkansas: sixteen ...

Georgia: sixteen ...

Kansas: sixteen ...

Kentucky: sixteen ...

Mississippi: sixteen ...

Oklahoma: sixteen ...

South Carolina: sixteen ...

West Virginia: sixteen ...

To be fair, a number of "Blue States" also set the age of marital consent at sixteen or seventeen and some "Red States" put it at eighteen.

The point is that Al Mohler, in his high "moral" dudgeon, can't be bothered to know what he is talking about.

The Arkansas legislature gave its final thumbs-up Friday to a bill that will block cities and counties from enacting antidiscrimination laws that protect LGBT people.

The Arkansas House of Representatives voted decisively, 57-20, for SB202, with seven members voting present. Having already cleared the state Senate Monday, the bill now heads to the governor's desk.

In an act of political courage unmatched since Gov. Bill Haslam of Tennessee allowed a Discovery Institute "teach the controversy" bill to become law, neither signing it nor vetoing it:

Gov. Asa Hutchinson told BuzzFeed News in a statement he will let the bill take effect. By neither vetoing nor signing the legislation, he said, "I am allowing the bill to become law." ...

I recognize the desire to prevent burdensome regulations on businesses across the state. However, I am concerned about the loss of local control. For that reason, I am allowing the bill to become law without my signature."

A bit of background:

The city council of Fayetteville, Arkansas, passed an LGBT antidiscrimination bill last summer that voters narrowly repealed in December. When politicians there suggested reintroducing the law, [Republican State Sen. Bart] Hester, who supported the repeal campaign, introduced his bill to override Fayetteville and other jurisdictions that attempt to pass similar laws.

As for the state legislature's interest in this:

As the bill's sponsor, Hester told BuzzFeed News earlier this week that religious business owners should be allowed to fire employees for being gay.

Hester also said no businesses requested the measure "I just chose to do this bill on my own will," he said — and could not name any business associations supporting the bill. "In our world if they are not opposing you, that is almost a sign of support," he explained.

Not only preempting antidiscrimination laws for LGBT people, the bill covers any local expansion of civil rights not covered under state law. "In targeting LGBT people, they have cast a wide net and prevented protections for a wide variety of groups," Holly Dickson, the legal director of the ACLU of Arkansas, told BuzzFeed News earlier this week. That net, for example, could ensnare students and veterans.

She said the bill is "designed to permit as much discrimination as possible in the state."

So, there was no "ground swell" for this law, it was just his own idea to make sure that bigotry is enshrined in state law and his fellow legislators, either out of their own bigotry or political fear, went along.

Of course, he has just bought the state a lawsuit. Luckily for Arkansasans, it won't cost them much money because it will be overturned on a summary judgment motion under Romer v. Evans, where the Colorado legislature tried to pull the same stunt. Hester act wasn't as explicitly aimed at LGBT people as in Romer, but he has left a trail that a blind pig could follow.

But the bigots aren't stopping there:

Also on Friday, the Arkansas House passed a religious freedom bill, which now advances to the state Senate. The act would prevent any state action, including a law, from burdening a person's religious belief, even if that belief is indirectly connected to the person's faith.

While some proponents argue the religious-freedom measure is needed to prevent government from trampling people's moral conscience, LGBT advocates say it would let businesses turn away customers — a trend becoming more commonplace when LGBT customers attempt to buy floral arrangements or cakes for same-sex weddings.

Rep. Mary Bentley seemed to confirm an interest in refusing service when she explained her support for the discrimination bill.

Bentley told lawmakers she is worried about "little businesses out there, a baker or a pastor … that hold a conviction that says gay marriage is wrong." She added, "That is what we are talking about today."

"We should be honest and truthful -- we like to beat around the bush up here," she said. "I am concerned about things happening across our state."

That would be a change from the religious right ...

After emphasizing that LGBT stands for "lesbian, gay, bisexual, and transgender," Bentley said from the lectern, "A baker who loves the word of God … should not have his or her business destroyed if someone who is transgender is trying to marry somebody else."

"I am a Christian in the United States of America," she continued. "It's time to stand up and say enough is enough. They can do what they want to do, but we don't have to destroy a business. I think it's time that business owners have rights as well."

While it is less certain what the courts will do with such exceptions to antidiscrimination laws, especially in the wake of the Hobby Lobby case (that I suspect Justice Kennedy will come to regret), the fact that it was passed on the same date as Hester's bill cleared the legislature certainly won't help Hester's law when it is challenged.

What was the line ... oh, yes, ..."Because fanaticism and ignorance is forever busy, and needs feeding."

I thought it was "As stubborn as a Missouri mule." Well, maybe we can make it "As stubborn as an Alabama ass"!

There has been, as they say, "developments" in the Alabama same-sex marriage situation. On Thursday afternoon, February 12th (Darwin Day!), Judge Callie V. S. Granade, after some technical legal maneuvering that I won't bore you with, made an Order imposing a Preliminary Injunction requiring Probate Judge Don Davis of Mobile County to issue marriage licenses to same-sex couples. Judge Davis, facing possible contempt citations, wisely complied promptly and some licenses were issued by the end of the day and marriages held.

More importantly, at the time of the hearing, only 23 of the 67 counties in Alabama were issuing same-sex marriage licenses. The majority of the rest were either not issuing any licenses or giving same-sex couples applications but refusing to process them. By late today, as the New York Times reports ("U.S. Orders Alabama to License Gay Unions"), all but 15 counties have begun issuing same-sex licenses or said they will begin to do so early next week.

Funny how that conservative icon, "the rule of law" thingie, works.

But (or is that "butt"?) here's where the asses come in. According to al.com ("While most Alabama counties now issue marriage licenses to same-sex couples, holdouts prepare for legal battle"):

At least eight probate judges still refuse to issue marriage licenses to same-sex couples, and have no plans to start. Mat Staver, founder and chairman of the conservative group Liberty Counsel, said his organization has agreed to represent those eight probate judges if they face lawsuits. One of the probate judges represented by his organization is Nick Williams of Washington County.

"We believe the order only applies to Mobile County and not to other counties in the state," Staver said.

Staver said Granade's rulings only apply to the Southern District of Alabama, where she presides as judge. It would take a ruling by the Alabama Supreme Court, the United States Court of Appeals for the Eleventh Circuit or the U.S. Supreme Court to overturn the state's ban on same-sex marriage, he said. The Court of Appeals and U.S. Supreme Court already denied requests to extend the stay on Judge Granade's original decision.

Now they have a point. Federal District Court decisions are only binding precedent within their district. Kitzmiller v. Dover, rightfully famous as it is, only barred the teaching of Intelligent Design Creationism in public schools in the Middle District of Pennsylvania.

They have a little problem, though ... the Southern District of Alabama includes Montgomery, the state capitol (which, of course, is why the plaintiffs brought it there).

In the Times article linked above, Ronald Krotoszynski, a professor at the University of Alabama School of Law, puts it nicely:

... Chief Justice Moore's legal position had some merit, but ... "it takes a kind of willful blindness to seriously make this argument." He pointed out that the decision of the higher courts to refuse the stay requested by the State of Alabama showed how they would have most likely ruled had the case been appealed.

"There's a technical argument that her order and her opinion are not binding on state court judges or state executive officers," Professor Krotoszynski said of Judge Granade's ruling, "but they would be binding before you can say 'Jehoshaphat' if someone named a state court official or state executive officer as a defendant in another suit."

That "state court official" would, of course, be Roy Moore and the "state executive officer" would be Gov. Robert J. Bentley, who has been desperately trying to stay out of this by saying, despite Moore's order that placed the onus on the Governor to enforce it, that he wouldn't take any action against probate judges, whether or not they issue same-sex marriage licenses.

Here's where the rubber meets the road. I'm sure that Moore would relish his "martyrdom" if he was held in contempt (again) by a Federal court ... especially if he was once (again) removed from the Alabama Supreme Court ... his speaking fees on the Religious Right rubber chicken circuit would, no doubt, increase exponentially.

But Bentley could find himself between the rock of the wingnuts and the hard place of the business interests who want no part of this echo of Alabama's past ... the same position that Jan Brewer of Arizona found herself in not long ago over Arizona's irrational immigration legislation, that she was forced to veto, no doubt to her political disadvantage. That has always been the problem with the Republicans dependence on the religious right as their base ... the hardest thing about riding a tiger is the dismount.

As I said before, the best thing to do now, for us folks fortunately unaffected, is to heat up the popcorn popper, crack open a beer and settle back to watch the show.

The Human Rights Campaign is asking ordinary Americans to be part of the historic Supreme Court case, DeBoer v. Snyder, which will decide whether or not LGBT people have the constitutional right to all the benefits and responsibilities of marriage that straight people enjoy.

This week, HRC launched an historic effort to give every American a chance to share their support of marriage equality with the Supreme Court of the United States.

By signing onto your name will go down in history, and on this landmark document, as a supporter of marriage equality.

I have read the brief and it is well written, cogent in its arguments and effectively counters the decision of the Sixth Circuit Court of Appeal that upheld state bans of same-sex marriage or the recognition of same-sex marriages even if they were entered into in states that allowed them.

In signing it, you do have to swear that you have read the brief, which is 47 pages long, but it is not so onerous as that may sound. You can skip or skim the preliminary matters (the meat begins on page 13) and, of course, you do not have to read or check the numerous case references.

I thought the brief was particularly effective in its refutation of the Sixth Circuit's claims that states have a right to "wait and see" and the argument from "tradition." I thought this bit was particularly good:

Referring to the fact that marriage for gay people has been legal in Massachusetts since 2004, the Sixth Circuit asserted that "[e]leven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage." But under this logic, when would the clock have run? In 2054, after 50 years? In 2104, after a century? ...

These relationships and families have not sprung up overnight, as if they were somehow the abstract creation of political activists. Rather, gay couples have been supporting each other, raising children together, and facing the same quotidian joys and burdens ("in sickness and in health") faced by other married couples for many years. ... States and local governments, in addition to private employers, have been formally recognizing such relationships since at least 1984. ... No state may excuse its failure to respect the equal dignity of its gay citizens on the ground that it has been caught unaware or that it needs an unspecified amount of additional time to see what might hypothetically happen in an imaginary world where straight couples' stability and sense of self-worth and commitment somehow depend on the continued existence of de jure discrimination against gay couples and their children. [Citations omitted]

But the brief, literally, saved its best shot for last.

Finally, it is not insignificant that petitioner James Obergefell from Ohio merely seeks to have the state correct the facts asserted on the death certificate of his late spouse, John Arthur. The two men were, in fact, married under the law of Maryland where their marriage was performed. It is absurd to contend that refusing to certify that a decedent was "married" to his spouse at the time of his death could possibly influence child rearing, or the willingness of straight couples to marry, or even offend tradition. But actions speak louder than words. Ohio insists that there must be a blank space on Mr. Arthur's death certificate where Mr. Obergefell's name should be. Not content to deny these men the equal protection of the law in life, it also seeks to deny them dignity even in death. Ohio's decision to reject this reasonable request to correct a factually inaccurate death certificate speaks volumes about what is really going on, leaving no doubt that the true motivation behind these laws is constitutionally impermissible animus against gay people.

I was proud to put my name to that brief and I hope that every person of good will do the same!

Why ... it's Judge Roy Moore standing in the courthouse door trying to stop same-sex marriage in Alabama!

Oh, wait a minute, maybe I'm mixing up my bigots!

It's been an interesting 24 hours in Alabama. As mentioned in my last post, a Federal District Court judge, Callie V. S. Granade (incidentally a George W. Bush appointee), ruled on January 23, 2015 that Alabama's ban against same-sex marriage and against recognizing same-sex marriages legally performed in other states violates the Fourteenth Amendment of the US Constitution. Judge Granade later granted a stay until February 9, 2015 of her ruling to allow the state to appeal and seek a further stay from the Eleventh Circuit Court of Appeal. Alabama's Attorney General sought that stay from the Circuit Court, which was denied. The Attorney General then, last week, petitioned the Supreme Court for a stay pending its decision in the Sixth Circuit's cases that it had granted certiorari on and which it should decide by the end of the term in June.

Moore had previously written an "advisory opinion" to all the probate judges (who handle issuance of marriage licenses in Alabama) telling them that they didn't have to obey the Federal Court order, a position that the attorneys for the Alabama Probate Judges Association had previously taken. In response to the APJA's statement, Judge Granade was asked to clarify her ruling which she did by quoting from the Federal judge in Florida ruling on a similar suggestion (which Florida officials, wisely, decided not to challenge):

As Judge Hinkle of the Northern District of Florida recently stated when presented with an almost identical issue:

History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees. ...

The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction.

In short, the District Court warned that there is a relatively easy way for people denied marriage licenses to enforce the court order against individual probate judges (and Judge Roy Bean Moore) and get all their legal costs back. Also, a government official who knowingly violates a well-known decision concerning the constitutionality of a law can lose his or her limited immunity and become personally liable for those damages.

The APJA quickly backed down, saying it was clear that probate judges would be required to issue marriage licenses to gay couples. But Moore is made of sterner stupider stuff.

By Sunday night, when the Supreme Court had still not acted, Moore upped the ante by issuing an order forbidding probate judges, who apparently fall under his jurisdiction as Chief Justice of the Alabama Supreme Court, from issuing same-sex marriage licenses or recognizing same-sex marriages from other states. Amusingly, after claiming he has jurisdiction over the probate judges, Moore stated that, if any of the judges disobey his order, "it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, ... to ensure the execution of the law." I'm not sure if Machiavelli would admire the low cunning of Moore or be appalled at his stupidity.

Anyway, on Monday morning the Supreme Court denied the stay, with Justice Thomas, joined by Justice Scalia, dissenting. Thomas got at least one thing right:

[T]he Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court's resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court's intended resolution of that question.

I think we all have seen that coming for quite some time, Justice Thomas.

Shortly after the Supreme Court decision, Gov. Robert Bentley, not wanting to be riding in the back seat as Moore once again plays "chicken" with the Federal courts, announced that he won't take any action against probate judges who issue licenses for same-sex marriages. This has resulted in a patchwork of availability of same-sex marriage licenses, with some of the state's largest cities — including Birmingham, Huntsville and Montgomery — issuing them but many other counties either refusing to issue them outright or temporizing because the probate judges are caught between the rock of the Constitution and the hard head of Roy Moore.

The best thing to do now, for us folks fortunately unaffected, is to heat up the popcorn popper, crack open a beer and settle back to watch the show.

Update: Oops ... I shouldn't post late at night! It appears that the Eleventh Circuit's recent decision to put off the appeals in Alabama and Georgia does not stay the implementation of the Federal court order. If so, same-sex marriage should begin in Alabama on Monday, February 9th. Roy Moore's and other wingnut head explosions will proceed unless SCOTUS issues a stay.

The Eleventh Circuit Court of Appeal has pulled Alabama Chief Justice Roy Moore's chestnuts out of the fire.

Moore issued a memo on Tuesday telling the state's probate judges that they're not required to issue marriage licenses to same-sex couples even though a federal court has ruled they must. The Federal court decision was to take effect on February 9th. Previously, the Eleventh Circuit had refused to delay the decision. The Alabama Attorney General had petitioned the Supreme Court for a delay in the implementation of the order. All previous petitions for similar stays have been denied by the Supremes.

Shades of 2003, when Moore refused to obey a Federal court order to remove a 10 Commandments monument he had installed in the Alabama Supreme Court building. That eventually led to his being ousted from the Alabama Supreme court by the Alabama Court of the Judiciary.

I don't know if the rather unusual decision of the Eleventh Circuit to stay a case (along with another) that it had specifically refused to stay just days before ... and where it had previously allowed same-sex marriage to proceed in Florida ... was an attempt to avoid a clash again between a nutcase like Moore and the Federal government ... but I honestly can't think of another reason.