Wednesday, February 25, 2015
On "Loving" America!
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."
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.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!
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.
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 ...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.
Arkansas: sixteen ...
Georgia: sixteen ...
Kansas: sixteen ...
Kentucky: sixteen ...
Mississippi: sixteen ...
Oklahoma: sixteen ...
South Carolina: sixteen ...
West Virginia: sixteen ...
The point is that Al Mohler, in his high "moral" dudgeon, can't be bothered to know what he is talking about.
Saturday, February 14, 2015
Out Assholing Alabama
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.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:
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.
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." ...A bit of background:
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."
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.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.
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."
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.That would be a change from the religious right ...
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."
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."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.
"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."
What was the line ... oh, yes, ..."Because fanaticism and ignorance is forever busy, and needs feeding."
And Now It Starts to Get Interesting ...
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.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.
"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.
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.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.
"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."
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.
Thursday, February 12, 2015
A Little Bit of History
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.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.
By signing onto your name will go down in history, and on this landmark document, as a supporter of marriage equality.
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? ...But the brief, literally, saved its best shot for last.
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]
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!
... Or Is That "Season's Greetings"?
Tuesday, February 10, 2015
Who's That Man In the Door?
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: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
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.
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
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.
Thursday, February 05, 2015
Eleventh Circuit To the Rescue
The Eleventh Circuit Court of Appeal has pulled Alabama Chief Justice Roy Moore's
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.
Sunday, January 25, 2015
Sunday, January 18, 2015
Even Faux News Isn't Homophobic Enough!
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!
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
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:
BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.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 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.
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.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.
... [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.
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
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
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?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.
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.
... 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!
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.Fortunately, there are sixteen other deputy clerks:
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.
"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."Kristie Lee Boelter ... you are my new favorite county clerk and a credit to your profession!
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."
Tuesday, November 18, 2014
... 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 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.
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.
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!
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.Well, there will be one impact ... when Staver finally realizes that he is standing in mid-air and falls to the desert floor below!
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.
Sunday, November 09, 2014
Sayin' It Well ... Again!
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
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).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."
“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.”
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 USIndeed, Inquisitr followed up with a story about Manning's claim that ended:
Huzlers.com is a combination of real shocking news and satirical entertainment to keep its visitors in a state of disbelief.
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
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.[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.]
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."
... 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.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! ...
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.
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. ...After discussing the decisions in the Fourth, Seventh, Ninth and Tenth Circuits, Judge Daughtrey goes on to say:
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. ...
These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts' decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. ...Ouch!
The majority's "original meaning" analysis strings together a number of case citations but can tell us little about the Fourteenth Amendment, except to assure us that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967. Despite a civil war, the end of slavery, and ratification of the Fourteenth Amendment in 1868, extensive litigation has been necessary to achieve even a modicum of constitutional protection from discrimination based on race, and it has occurred primarily by judicial decree, not by the democratic election process to which the majority suggests we should defer regarding discrimination based on sexual orientation. ...[I like that allusion!]
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, ...
... 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." ...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!
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.