Sunday, January 25, 2015


Bearly Funny

From Matthew Cobb at Jerry Coyne's not-blog comes this bit of outdoor humor from the Fort Steele (British Columbia) Campground::

Sunday, January 18, 2015


Even Faux News Isn't Homophobic Enough!

It seems that "Fox News' pro-homosexual bias continues," according to the rabidly anti-LGBT "Americans for Truth About Homosexuality" and its foaming-at-the-mouth president, Peter LaBarbera.

According to LaBarbera, Fox anchor Bret Baier pulled out as a speaker at a Legatus event because "the 'conservative' network push[ed] Baier to pull out."

Legatus is a self-described "international organization of practicing Catholic laymen and laywomen, comprised of CEOs, Presidents, Managing Partners and Business Owners," founded by Tom Monaghan. You remember Monaghan ... you know ... the guy who also founded the Thomas More Law Center, that went down in such spectacular flames in the Kitzmiller v. Dover case!

He may not be doing much better here. Again according to LaBarbera, not only Baier but Gary Sinise and even conservative icon Peter Coors have pulled out of the event, supposedly because of a blogger saying that Legatus is a "very anti-gay organization of Catholics." Well, Jeremy Hooper did say that, but he also quoted and linked to articles on Legatus' website that demonstrated that point rather well. Indeed, it goes well beyond just homosexuality, as in this piece by Fr. John Trigilio:
Any and all human sexual activity, whether heterosexual or homosexual, outside of marriage (between one man and one woman) is considered seriously and gravely sinful. Masturbation, adultery, promiscuity, fornication, artificial contraception, pornography, and homosexuality pervert the original intention that God has for marriage, namely love (unitive dimension) and life (procreative dimension).
Once nominally Catholic, I would offer Fr. Trigilio a hearty middle finger but it and its four friends are busy not engaging in procreative activity. To be lectured on the proper usage of sex by a church that, for decades, if not centuries, aided and abetted child molesters is too ironic for words!

But back to the main subject: if the bigots feel abandoned by Faux News, how long is it before they take up the status they have been so avidly seeking? ... right alongside the Ku Klux Klan.


To the Moaning and the Groaning of the Bells!

The latest teapot the Religious Right has tempested in is the decision of Duke University (since reversed) to allow the Muslim call to prayer to be broadcast (at moderate amplification) from the bell tower of its chapel.

Done well, the adhān, or azān, is quite as beautiful as any Gregorian chant or rendition of Amazing Grace.

But Christian Privilege demands that it can't be done. For example, Albert Mohler said:
As I noted yesterday on The Briefing the real issue here is that Muslim students were given a religious accommodation that clearly wasn't available to other students – including evangelical Christians.
Really? As the L.A. Times noted, "The bells at the Neo-Gothic chapel ring twice on Sundays for Christian services." That isn't a call to prayers?

Oh, sorry, the wrong prayers!

Saturday, January 17, 2015


It's Time!

Sorry for the long hiatus. I had a terrible December ... a bout of the flu, a car accident (no injuries but a lot of paperwork with insurance and getting a new car), another couple of days in the hospital with my still mysterious gastrointestinal ailment and then trying to catch up at work for all the time lost.

On to some more hopeful news.

The issue of marriage equality will be definitively decided, it is now all but certain, by the end of June. On Friday, January 16, 2015, the Supreme Court granted certiorari in the four cases, from Kentucky, Michigan, Ohio, and Tennessee, in which the Sixth Circuit court of Appeal upheld the state bans on same-sex marriage and/or on recognition of out-of-state same-sex marriages validly entered into in other states:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1.

A total of one hour is allotted for oral argument on Question 2.

The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.
While the decision did not set the date for oral arguments, it is believed that they will be heard during its final session of oral arguments from April 20 through 29. If all goes as expected, that means the Court should issue a decision by the end of this term in late June. It would not be surprising if it was the last decision it issues.

The Justice Department has announced that it will file an amicus curiae brief in favor of marriage equality.

SCOTUSblog, which is an excellent source of news and commentary on the Supreme Court, its workings, and its decisions has been busy over the last day.

David B. Cruz, Professor of Law at the University of Southern California Gould School of Law, lays out the reasons why it is not overly optimistic to believe that the Court will strike down the Sixth Circuit's decision and find a constitutional right to same-sex marriage:
And, while predictions are always risky, the couples appear likely to prevail on those claims. As mentioned above, the Supreme Court let stand earlier marriage equality decisions from the Fourth, Seventh, Ninth, and Tenth Circuits and denied stay requests from Florida, for example. If there had been a solid five votes on the Court to reject the constitutional arguments for marriage equality, such five Justices likely would have granted a stay of those rulings to preserve states' prerogatives regarding marriage. This suggests that Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – all of whom voted to uphold the discriminatory Defense of Marriage Act in United States v. Windsor – did not think they could count on Justice Anthony Kennedy (or any of the four more "liberal" Justices) to vote against marriage equality. Since the Court let untold numbers of same-sex couples marry in states across the country by rejecting many states' cert. petitions and has now taken up four cases presenting the same issues, it would seem difficult from a fairness issue to let residents of Ohio, Tennessee, Michigan, and Kentucky enjoy less constitutional protection than residents of many other states. It is unthinkable to me that the Court would now turn around and tell the people who married only after it cleared the way for them to do so that the Court was wrong to do that and their marriages were void.
On the whistling past the graveyard side is Austin Nimocks, Senior Counsel at Alliance Defending Freedom, who seems to think that the Supreme Court was just waiting for a decision to allow "the people's freedom to debate this issue of marriage as a community." He actually titles his article "Cert. grant signals promising vehicle to affirm marriage" (which in fundie-speak means "limit marriage to people I like"). I agree to the extent that it is just like the Supreme Court was waiting to affirm the people's right to debate "separate but equal" as a community. And he seems to think that the fact that, at the time of Loving v. Virginia "only" sixteen states still had anti-miscegenation laws somehow matters. Apparently, there is a "magic" number of states where constitutional rights are denied where the Court can step in and say the people's freedom to debate is over. Bottom line: "Yeah, we lost this fight ... but keep those donations coming!"

A somewhat more rational response comes from Andrew Brasher, the Solicitor General of Alabama, who is concerned that the Supreme Court might find "that man-woman marriage laws serve no legitimate state interest and fail even the lowest form of constitutional scrutiny – the rational basis test." I have speculated that Chief Justice Roberts might assign himself the majority decision to rule exactly that way, as a way to make it easier to discriminate against LGBT people (and other disfavored minorities). For example, is there a "rational basis" to pass laws to keep transgender people out of bathrooms and locker rooms assigned to people of different "biological" genders? That might be a closer question.
It is one thing for a court to find that a state law affects a suspect class or fundamental right, impose a high level of scrutiny, and hold the state to its burden to justify the law. It is another thing entirely for a court to hold that a state policy is so wrongheaded as to be beyond reason, even though it infringes no fundamental right and affects no suspect class. The former kind of ruling justifies itself by reference to constitutional principles that are, by definition, more important than whatever good-faith reason the state had for its countervailing policy choice; the latter kind of ruling indicts the state's decision-making process itself as dysfunctional at best and, perhaps, malicious.

... [T]he Court should at least reject the argument that these laws serve no legitimate state interest. The rational basis test is easy to meet. It is thus no coincidence that the Sixth Circuit is the first appellate court since Windsor to apply the rational basis test to state marriage laws and, also, the first appellate court since Windsor to uphold them as constitutional. Even the U.S. Department of Justice, which argued that DOMA was unconstitutional under strict scrutiny, defended DOMA as rational. ...

... [S]tates are in the marriage business "not to regulate love," but because of "the intended and unintended effects of male-female intercourse." Accordingly, it is not unreasonable that many states' marriage laws reflect an "awareness of the biological reality that couples of the same sex do not have children the same way as couples of opposite sexes." The Sixth Circuit also acknowledged the state's legitimate interest in adopting a wait-and-see approach "before changing a norm that our society (like all others) has accepted for centuries." Are these compelling state interests narrowly served by traditional marriage laws? Debatable. Are they legitimate interests that are rationally related to traditional marriage laws? Of course they are.
While there is something to be said for this argument, it ultimately fails on his admission that it is "debatable" that "compelling state interests [are] narrowly served by traditional marriage laws." In case after case that examined such claims, it was found, as a factual matter, that the arguments that were advanced for such a state interest had no relationship, whatsoever, to denying same-sex marriage.

Lastly, Steve Sanders, who teaches constitutional law at the Maurer School of Law, Indiana University Bloomington, has a nice discussion of why the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012 were, in fact, the products of constitutionally repugnant "animus" – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike.
An inquiry about animus does not require that we "indict" citizens who voted for a law, or that we probe their psyches or individual motives. It simply takes seriously the principle that every law is proposed and approved for some purpose (sometimes more than one), and it is a judicial task to identify and assess the purpose(s). When evidence of gratuitous or irrational intent to harm a group outweighs a law's purported legitimate justifications, the law betrays an improper purpose and violates equal protection. As the late Chief Justice William Rehnquist observed in Hunter v. Underwood, the same law can be valid or not under the Equal Protection Clause depending on whether it was "motivated by a desire to discriminate."
Well, the storm looms on the horizon. If the Supreme Court does as it has been signaling it will do for the last two years, the Religious Right will lose whatever collective minds it still has. There will be attempts by state legislatures to somehow hold back the rising tide and King Canute will stalk the land. There will be hysteria (which will generate much amusement) but, it is devoutly to be wished, LGBT people will, at last, have a chance to settle down, raise families in peace and enjoy all the rights of other people.

Thursday, January 08, 2015


Je Suis Charlie

Friday, November 28, 2014


Chippin' Away

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 ...

Thursday, November 27, 2014


A Gobbler for Thanksgiving

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.

Sunday, November 23, 2014


Hurrah for Sanity, Duty and Honor!

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!

Tuesday, November 18, 2014


Sutton's Place

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.

Thursday, November 13, 2014


Divining the Court

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.

Monday, November 10, 2014


Wile E. Staver ... Super Genius!

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!

Sunday, November 09, 2014


Sayin' It Well ... Again!

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.


Stupid for God

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 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!

Thursday, November 06, 2014


Movin' On Up

... 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. ...
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!

Wednesday, October 29, 2014


Kinder, Gentler Southern Baptists?

My, my ...

The Southern Baptists are holding a conference, called "The Gospel, Homosexuality and the Future of Marriage."
Speakers at the event said they understood they were on the losing end of the culture war on marriage. ...

"This moral revolution is happening at warp speed," said the Rev. Albert Mohler, president of the Southern Baptist Theological Seminary. "This is a real challenge to us on biblical authority." ...

Mohler, the most prominent Southern Baptist intellectual, said from the stage that he was wrong years ago when he said same-sex attraction could be changed. The Rev. Russell Moore, director of the Southern Baptist's Ethics and Religious Liberty Commission, which organized the conference, drew applause when he condemned anti-gay bullying and called on Christians to address the problem of homelessness for gay and lesbian youth as "a human dignity issue." He said parents shouldn't shun their gay children.

"You've been given a mission of reconciliation," Moore told the audience. "Jesus is not afraid to speak the truth, but Jesus is not shocked by people or disgusted by people."
Even one of the "ex-gays" was down with the program:
... Christians, such as Rosaria Butterfield, who had been attracted to members of the same-sex but say they were now married to someone of the opposite sex or had overcome their attractions ... said evangelicals need to "repent of anti-gay rhetoric" and befriend gays and lesbians instead of trying to "fix" them.
There were, of course, still the hard liners:
Erik Stanley of the Alliance Defending Freedom, the law firm defending Christian business owners and others who refuse to serve gay weddings, said it was a myth that the 1998 murder of Matthew Shepard in Laramie, Wyo., was a hate crime. He argued gays wanted "unfettered sexual liberty" while silencing all dissent.
Sure, tied to that fence, Matthew was trying to silence all dissent of his unfettered sexual liberty.

Still, the fact that Southern Baptists are even talking about this is a sign of two things: 1) they are beginning to recognize that "[e]vangelicals in the millennial generation, ages 18-33, are twice as likely as their elders to support same-sex marriage, according to a survey released in February by the Public Religion Research Institute" and 2) hatred is a poor way to win friends and influence people.

Sunday, October 26, 2014



In the quiet hours

The still time

When night is adamantine

And the Dawn never seems to come

I think of you


Come back ghostly

At the corner of my eye

Gone again

... and I cry


Saturday, October 25, 2014


Ready ... Aim ...

A few days ago, over at Ed Brayton's Dispatches From the Culture Wars, I responded to a question:
Legal philosophy question here: did the courts legalize same sex marriage?
... by saying:
Technically, no. The state could, if it wished, do away with all marriage (and all the benefits and responsibilities that presently go along with the status of "marriage"). The courts have been saying you can't create such a status that, with no rational basis, denies a certain segment of the population access to that status in violation of the equal protection and due process clauses of the 14th Amendment. However, since there is no state that is about to do away with marriage benefits widely enjoyed by much of the populace (i.e political death on toast), the effect is that they have legalized gay marriage.
I may have underestimated the willingness of bigot politicians to shoot themselves and their constituents in the collective foot.

According to Right Wing Watch, one Republican (surprise!) Idaho State Senator, Steve Vick, has said:
"Another potential avenue that I'm exploring is just eliminating marriage licenses in Idaho."

Vick admits eliminating state sanctioning of marriage would be a big step, and he is only beginning to explore that option. Still, he said the response so far is very positive.

"I have discussed it with just a few people," he said. "I don't have a bill drafted or anything. I have discussed it at some of the town halls I've been at. It actually seems to be fairly well-received. In my opinion, if we're not allowed to determine the standards for a marriage license, then maybe we should just not issue them."
So, just in order to punish gay people, this numbnutz would deprive all the straight people of Idaho of the future benefits of marriage, including, but far from limited to, state and Federal tax benefits, the right to visit their spouses and children in hospitals and make medical decisions for them if they are incapable of doing so, automatic inheritance, etc., etc.

Of course, it is stupid on its own terms. The 9th Circuit Court of Appeal also held that Idaho has to recognize out-of-state same sex marriages. Idaho borders on Washington, Oregon, Nevada, Utah, Wyoming and Canada (all of which allow same sex marriage), as well as Montana, which, as part of the 9th Circuit, will soon also allow same sex marriage. In short, gays and straights will be able to slip across any border of Idaho and get married and come back to Idaho with full marriage rights. All Vick's proposal would do would be to deprive the state and/or county governments of the income from marriage licenses and destroy the businesses of those in Idaho who perform marriages, cater the receptions, provide the tuxedos, gowns, cakes, photographs, etc.

Some people are just stupid enough to be willing to hurt themselves to spite others.


Stupid In the Name of Religion

The North Carolina News and Obsever has a story, entitled "Backlash against marriage ruling rises as voting starts," about black Christian wingnuts losing their minds about the recent gutting of the state's ban against same sex marriage. I am particularly amused by this:
[Bishop E.W. Jackson Sr., Virginia's Republican nominee for lieutenant governor in 2013] rejected any comparison between religious opposition to interracial marriage and opposition to same-sex marriages.

"We hear this all the time," he said. "This is the most specious comparison that I've ever heard in my life."

The Bible does not condemn interracial marriage, he said, but it does homosexual relationships.
Really, Bishop? Where, exactly, in the Bible is same sex marriage condemned? Oh, sure, the Old Testament, at Leviticus 20:13, says that a man who has sex with a man should be put to death (but, note, it doesn't say that a woman who has sex with a woman should be put to death). Is that the law you want in North Carolina? ... that gay men should be stoned to death? The New Testament, at least as far as Paul was concerned, called homosexuals "sinners." But wait a minute ... under your religion aren't we all "sinners"? So no one should have Constitutional rights?

But the bigger question is, do you really want that big evil government deciding what the Bible and Christianity really says? After all, the state judge in the Virginia v. Loving (click on the image of the record to the right) was convinced that:
[The Loving's marriage] was a marriage prohibited and declared absolutely void. It was contrary to the declared public law, founded upon motives of public policy -- a public policy affirmed for more than a Century, and one upon which social order, public morality and the best interests of both races depend. This unmistakable policy of the legislature founded, I think, on wisdom and the moral development of both races, has been shown by not only declaring marriages between whites and negroes absolutely void, but by prohibiting and punishing such unnatural alliances with severe penalties. The laws enacted to further and uphold this declared policy would be futile and a dead letter if in fraud of these salutary enactments, both races might, by stepping across an imaginary line bid defiance to the law by immediately returning and insisting that the marriage celebrated in another state or county should be recognized as lawful, though denounced by the public law of the domicile as "unlawful and absolutely void."

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arraignment there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Should some Federal judge be deciding what, exactly, the Bible and Christianity really says? Or do you just want to enshrine you own interpretation of the Bible into the law?

When people with a different interpretation of, say, the "Curse of Ham" are in the majority, you may regret it.

Wednesday, October 22, 2014


Oh Canada!

To our fast friends and allies to the north, please be assured that all Americans of good will mourn the losses you have suffered in the last few days. We wish you all the best and stand ready to assist you in any way we can.

Tuesday, October 21, 2014


Al Mohler Tries to Think It Through

... and winds up with a headache.

Mohler, who I've described as a marginally saner wingnut, because he has held his nose and realized that the fight against same sex marriage is over, can't understand how Ted Olsen can hold what, to Mohler and someone named Mona Charen, are contradictory positions:
... I want to draw attention to an important article by Mona Charen of the Ethics and Public Policy Center that ran in several newspapers across the country, including the Sunday edition of the Birmingham News. Charen writes about the appearance on Fox News Sunday, back on October 12, of lawyer Ted Olson, one of the two lawyers in the appeal of the California Proposition 8 case.

Appearing there on Fox News Sunday, Ted Olson offered his argument for the legalization of same-sex marriage and his justification for the Supreme Court taking its action. But, as Charen notes, Ted Olson made a fundamentally contradictory argument. She writes,

"Appearing on set Fox News Sunday to discuss the Supreme Court's decision to let stand a number of judicial rulings overturning the acts of legislators and/or voters in 16 states, famed advocate Ted Olson offered the kind of reasoning that, in his former incarnation as a conservative, he would have scorned. 'Over 59 percent of Americans now believe that marriage equality should be the law of the land,' he proclaimed. Seconds later he seemed to contradict himself: "We have a Constitution and Bill of Rights precisely because we want protections from majority rule."

Like Mona Charen, did you hear the contradiction? ...
"Which is it, a fundamental right that ought to be recognized without regard to majority views, or a popular view that deserves to be enshrined in the Constitution by the courts just because it's polling well? [Charen then writes,] If it's true that large majorities have changed their minds on same-sex marriage, why not leave the matter to state legislatures and voters rather than undemocratically taking the question out of their hands?"
What Mohler and Charen are missing is that, when these various SSM bans were passed, a (then benighted or mislead) majority wanted to punish gays by denying them their rights under our Constitution. LGBT people deserved then and deserve now the protection from that amimus that is afforded by our Constitution. They should not have to wait for the often prolonged political process nor depend on the local social milieu of any one state to secure their rights.

The point of mentioning that over 59 percent of Americans now believe that marriage equality should be the law of the land is to establish that, no matter how quickly the tide of opinion has turned, it is now widely recognized that it is a basic right and, therefore, deserves heightened protection under our laws.

The suggestion that gays resort to the local political system in, say, Mississippi or Alabama, to secure their rights is akin to claiming that blacks should have done the same to end Jim Crow laws.

Monday, October 20, 2014


Reality Bites

Staring reality in the face and blinking, Wyoming (despite a previous pledge to fight on) and Arizona have decided not to attempt to further delay the implementation of same sex marriage in those states.

The Supreme Court also refused to block the implementation of same sex marriage in Alaska, thus mushing the state's officials faces in that heap of reality.

However, Kansas is apparently still in Oz:
"No court has squarely decided whether the Kansas Constitution's prohibition on same-sex marriage — adopted by voters less than a decade ago — is invalid," [Kansas Attorney General Derek] Schmidt, a Republican, said in a statement.
The Federal judge in the Kansas case has scheduled a hearing for this coming Friday for the state to come up with arguments why the Tenth Circuit Court of Appeal's ruling should not apply to Kansas, at which time or shortly thereafter, there will be a court will have squarely decided the issue. It may then take an even larger dose of reality, in the form of the Supreme Court, to get through to them.

Sunday, October 19, 2014


Two Faced

You may have heard about the conservative majority of the Jefferson County, Colorado school board that wants to "review" (i.e. change) the curricula prepared by the College Board for Advanced Placement History courses. Seeing immediately that the board intended to [cough] whitewash American history, students and teaches began protests, walkouts and sickouts in protest.
The Jefferson County walkout began after a school board member, Julie Williams, proposed creating a curriculum review committee to assess the new AP History classes. "Materials should promote citizenship, patriotism, essentials and benefits of the free enterprise system, respect for authority, and respect for individual rights," read the proposal, which was discussed at a Sept. 18 meeting. "Materials should not encourage or condone civil disorder, social strife, or disregard of the law."
This was, to anyone who follows People For the American Way's Right Wing Watch website, extremely funny. I went through about a year's worth of the quotations of various conservatives calling for "civil disobedience" and here's what I found (many need no explanation outside their titles):

Anti-Gay Activists: We Need Our Rosa Parks!

Peter LaBarbera, president of Americans For Truth About Homosexuality, visited Janet Mefferd's radio program yesterday to discuss his call for "civil disobedience on a massive scale" to protest marriage equality and "the gay thought police." The two agreed that the anti-gay movement is ready for its own Rosa Parks to spark a national outcry with an act of civil disobedience…against marriage equality. ...

LaBarbera insisted that governors should flout court rulings striking down same-sex marriage bans and urged anti-gay activists to emulate anti-abortion "sidewalk counselors," who protest abortion by approaching women entering clinics.

Peter LaBarbera Vows 'Massive Civil Disobedience' To Block Gay Marriages

Linda Harvey: Fight 'Evil' Gay Marriage With 'Civil Disobedience'

Pat Buchanan: 'Massive Civil Disobedience' Needed To Fight 'Anti-Christian Discrimination'

Matt Barber Pledges Civil Disobedience To Stop Same-Sex Marriage

Matt Barber: Anti-Gay Activists Facing 'Water Hoses' Like MLK

For every law, regulation, activist court ruling or presidential edict that demands Christians violate their sincerely held religious beliefs and adopt a postmodern, moral relativist way of life, there increases, in exact proportion, the likelihood of widespread civil disobedience – disobedience of the sort we haven't seen since the civil rights struggles of the 1950s and '60s.

Indeed, if, in the spirit of the Rev. Martin Luther King Jr., we, his fellow Christian travelers, must again face the water hoses, then face them we shall.

Hobby Lobby And 'Biblical Economics'

Conservative Catholic and evangelical leaders who have signed the Manhattan Declaration, including some U.S. bishops, declare themselves willing to engage in civil disobedience – maybe even martyrdom – in order to avoid any participation in abortion or any "anti-life act." Nor, they declare, "will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family." [Of course, no one is going to force them to perform same sex marriages or treat them as equivalent to opposite sex marriages ... though they don't get to use the civil law to outlaw same sex marriages ... or stop them from proclaiming their religious beliefs.]

Todd Starnes Warns Of Anti-Duck Dynasty Violence, Links Same-Sex Marriage To Healthy Food Initiatives

In an interview last week with talk show host Jeanne Dennis, Fox News commentator Todd Starnes predicted that conservative Christians will soon organize acts of civil disobedience and street demonstrations akin to the Civil Rights Movement to protest their purported oppression.

Anti-Gay Activists Call For 'Civil Disobedience' In Wake Of Marriage Equality Rulings

Jeff Allen, an Indiana-based pastor and senior editor of BarbWire, called for "elected leaders and Christians [to] defiantly rise up and engage in civil disobedience" to stop this "national tragedy" and "the death of democracy."

Michael Peroutka, God, and Christian Reconstructionists At Larry Klayman's Revolution

At last week's less-than-spectacular kickoff for the Second American Revolution, Larry Klayman announced that President Obama has until this coming Friday, November 29, to resign. If he doesn't, Klayman and his friends will move forward with their plan to organize mass civil disobedience, force the resignation of President Obama and the Congress, and replace them with a government-in-waiting to be formed in Philadelphia in the coming weeks. [BTW, how did that work out, Larry?]

Republican Congressman Threatens Civil Disobedience On Romeike Case

[Concerning the Romeike family, that left Germany for Tennessee over disagreements with German homeschooling laws.]

It seems that conservatives are only concerned about not condoning civil disorder, social strife, or disregard of the law when it is in service of issues they disagree with.

Of course, the attempt by conservatives to wrap themselves in the mantle of Martin Luther King and the civil rights movement, especially in their efforts to deny other people equal rights, is particularly galling, since these were the same people who, during his lifetime, called King a communist agent out to destroy America.

Another bit of revisionism is the statement of Larry Krieger, a retired AP History teacher from New Jersey, who has been going around the nation testifying against the new AP History standards. He said: "The framework will produce a generation of cynics." Really? Who are bigger cynics about the US government and its actions than conservatives?

But to cap off the comedy, there is the statement of another of the conservative board members, Pam Mazanec. To demonstrate her competency to judge any history curricula, she said on Facebook, in support of her position that the curricula "is aligned with the content of college level history courses that downplay our noble history and accentuate the negative view":
As an example, I note our slavery history. Yes, we practiced slavery. But we also ended it voluntarily, at great sacrifice, while the practice continues in many countries still today! Shouldn't our students be provided that viewpoint? This is part of the argument that America is exceptional. Does our APUSH Framework support or denigrate that position?
Fighting a civil war in which more Americans died, north and south, than in any other war we've ever fought is "voluntarily" ending slavery? To the right wing, words have no meaning.

Saturday, October 11, 2014


Careful What You Wish For

On Tuesday, October 7, 2014, the Ninth Circuit Court of Appeals decision overturning Nevada's and Idaho's same sex marriage bans came down. On Wednesday, Idaho officials brought an emergency petition to Justice Kennedy seeking a stay of the implementation of such marriages in the state, based on a claim that their appeal would be narrower than other such appeals that the Supreme Court had denied certiorari in. Instead, they claimed, Idaho would be focusing on the level of "scrutiny" that should be applied to equal protection and due process claims under the Fourteenth Amendment. Different Circuit courts have applied different levels of scrutiny, from the lowest, "rational basis," through "heightened scrutiny," as the Ninth Circuit applied, to the highest and most difficult for a law to survive, "strict scrutiny."

Justice Kennedy granted a temporary stay and ordered the Idaho plaintiffs to respond to the state's petition by end of business on Thursday. They responded:
If a stay issues, the plaintiffs will continue to be denied the right to enter into or have recognized the most important relation in life; they will continue to lack critical legal protections for their families, such as spousal-visitation and medical-decision-making rights in hospitals, that different-sex couples have long enjoyed; and their children will continue to be deprived of the security of knowing that their parents' relationships are recognized by the state where they live.
On Friday, Idaho replied:
If the court wishes to signal that its recent denials of various marriage-related petitions was intended to finally and conclusively resolve the constitutionality of state laws defining marriage as a union of man and a woman, the court should deny Idaho's application.
Shortly thereafter, the Court issued this Order:
The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.
Of course, it doesn't mean that the Court intended to finally and conclusively resolve the constitutionality of state laws defining marriage as a union of man and a woman but it probably does indicate that a majority of the Court does not think that the level of scrutiny applied to those laws is a significant issue or, in other words, that such laws fail all three tests.

Another nail in the coffin of bigotry.

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