Gay Marriage

7th Circuit: LGBTQ Discrimination IS Sex Discrimination

It’s not definitive, but this is a huge step. The Seventh Circuit ruled 8-3 that a woman who was denied a job because she was a lesbian had a cause of action under Title VII.  Title VII is the civil rights law which prevents workplace discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so.

In an opinion which many critics will call “legislating from the bench”, the 7th Circuit majority in Hively v. Ivy Tech Community College of Indiana, ruled that Title VII discrimination is applicable because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation. ‘”  This is undeniably true.  If Ms. Hively had been a man with a preference for women, there would have been no issue with her being hired.  But she is a woman.  Therefore, this has to do with gender.

The dissent argues, predictably:

[Plaintiff’s attorney] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception.

That’s a rather typical conservative judicial interpretation (unless we are talking about the word “arms” in the Second Amendment).

Anyway, this is a big step forward, and I expect that the Supreme Court will visit this soon.  Here is the full opinion:

Is This The End Of The Line For Judge Roy Moore?

Alabama Supreme Court Chief Justice Roy Moore is set for a hearing at 1:30 p.m. (2:30 EST) today on charges he violated Alabama’s ethical standards for judges.

Moore is asking the Alabama Court of the Judiciary to dismiss the ethics complaint filed by the state’s Judicial Inquiry Commission. The Judicial Inquiry Commission is asking for a summary judgment against Moore and his removal, instead of moving the matter to a trial.

The JIC alleges Moore’s January 2016 order and his conduct surrounding it encouraged Alabama’s judges to disregard clear federal law.

Moore issued an order in January to Alabama’s probate judges, concerning same-sex marriage. Moore told the probate judges a ban on issuing marriage licenses to same-sex couples was still in effect until the Alabama Supreme Court issued a ruling.

But Moore’s order came more than six months after the U.S. Supreme Court in its Obergefell decision had ruled state bans on same-sex marriage were unconstitutional.

In a response filed with the Alabama Court of the Judiciary, Moore’s attorneys argue he was simply following the law and established procedure in his order, not defying the Supreme Court.

A thematic deception that infuses the JIC brief is that the Chief Justice ordered the probate judges that they ‘had a duty, under Alabama law, not to issue same-sex marriage licenses,’” the filing argues. “The Chief Justice, however, did not on his own initiative direct the probate judges to follow Alabama marriage law.

“Instead he instructed them that ‘[u]ntil further decision by the Alabama Supreme Court’ they were still under a state-court injunction issued by that Court. He neither endorsed nor criticized that injunction. Because consideration of the effect of Obergefell on that injunction had been pending before the Alabama Supreme Court for six months, the Chief Justice considered it prudent to remind the probate judges that the injunction still remained in effect pending its review.”

Moore was removed from the bench as chief justice in 2003 after refusing a federal court order to remove a 10 Commandments monument from the state judicial building.

Moore was re-elected chief justice in 2012.

Local news earlier:

A very late update from AL.com:

Suspended Alabama Supreme Court Justice Roy Moore will go on trial next month on judicial ethics charges after the Alabama Court of the Judiciary late Monday issued an order that denied Moore’s request to dismiss the charges.

The court, in a brief one-page order, also denied a motion by the Alabama Judicial Inquiry Commission that sought an order removing Moore from the bench without a trial.

Update To Pope Meeting Kim Davis

In a follow-up to an earlier post, I should mention that the Pope, while admitting to meeting Kim Davis the other day, is doing some serious backpeddling today:

In a formal statement, the Vatican said Friday that Pope Francis’s meeting with Kentucky clerk Kim Davis “should not be considered a form of support of her position in all of its particular and complex aspects.”

The statement, issued by the Rev. Federico Lombardi, Director of the Press Office of the Holy See, said it was not a “real audience,” suggesting that she was among a group that gathered to greet him and send him off.

That’s a rather unusual statement, and it suggests that the Pope really wasn’t informed about who he was meeting.

When you couple that with the fact that the Pope-Davis meeting was revealed by Davis’s Liberty Counsel lawyers and not, as one would suspect, the Vatican spokesmen, red flags are being raised.  See, e.g. Esquire, Was Pope Francis Actually Swindled into Meeting Kim Davis?  To answer Esquire’s question, I think he was.

Anyway, undeterred by the Vatican backing off the significance of the meeting, Liberty Counsel issued a fresh statement this morning claiming the pope’s support for their client.

“Neither Kim Davis nor Liberty Counsel ever said the meeting was an endorsement of her legal case,” the law firm’s founder, Mat Staver, said in a press release. “Rather, the meeting was a pastoral meeting to encourage Kim Davis in which Pope Francis thanked her for her courage and told her to ‘Stay strong.’ His words and actions support the universal human right to conscientious objection.”

I think the Pope gets to say what his words and actions are meant to support, buddy.

Remember, this is the Pope who said, with respect to gay people, “Who am I to judge?”

So now the question is becoming relevant — how did the meeting come about? And more and more, it looks like behind the scenes machinations by Liberty Counsel, perhaps with the aide of a sympathetic Vatican “insider” and NOT something this Pope sought out.  Those weasels.

UPDATE:  Even though the Pope met Kim Davis, he actually had an “audience” with…. well, CNN just broke this “exclusive”:

The day before Pope Francis met anti-gay county clerk Kim Davis in Washington last week, he held a private meeting with a longtime friend from Argentina who has been in a same-sex relationship for 19 years.

Yayo Grassi, an openly gay man, brought his partner, Iwan, as well several other friends to the Vatican Embassy on September 23 for a brief visit with the Pope. A video of the meeting shows Grassi and Francis greeting each other with a warm hug.

In an exclusive interview with CNN, Grassi declined to disclose details about the short visit, but said it was arranged personally by the Pope via email in the weeks ahead of Francis’ highly anticipated visit to the United States.

“Three weeks before the trip, he called me on the phone and said he would love to give me a hug,” Grassi said.

How do you like them apples?

Kim Davis Secretly Met With The Pope

Not much of a secret anymore:

Pope Francis met privately in Washington last week with Kim Davis, the county clerk in Kentucky who defied a court order to issue marriage licenses to same-sex couples, a Vatican spokesman confirmed on Wednesday.

Ms. Davis, the clerk in Rowan County, has been at the center of a nationwide controversy over whether government employees and private businesses have a legal right to refuse to serve same-sex couples. She spent five days in jail for disobeying a federal court order to issue the licenses.

On Tuesday night, her lawyer, Mathew D. Staver, said in a telephone interview that Ms. Davis and her husband, Joe, were sneaked into the Vatican Embassy by car on Thursday afternoon. Francis gave her rosaries and told her to “stay strong,” the lawyer said. The couple met for about 15 minutes with the pope, who was accompanied by security guards, aides and photographers. Mr. Staver said he expected to receive photographs of the meeting from the Vatican soon.

On Wednesday, the Vatican spokesman, the Rev. Federico Lombardi, confirmed that the meeting took place, but he declined to elaborate. “I do not deny that the meeting took place, but I have no other comments to add,” he said.

Ms. Davis described the meeting in an interview on Wednesday with ABC News.

“I put my hand out and he reached and he grabbed it, and I hugged him and he hugged me,” Ms. Davis said. “And he said, ‘Thank you for your courage.’ ”

“I was crying. I had tears coming out of my eyes,” she said. “I’m just a nobody, so it was really humbling to think he would want to meet or know me.”

Mr. Staver, her lawyer, said Vatican officials had been aware of Ms. Davis, and that the meeting had been arranged through them — not through bishops or the bishops’ conference in the United States. He would not identify the Vatican officials.

In his public addresses in the United States, the pope spoke in broad strokes about the importance of religious freedom. On the plane trip home, an American television reporter asked him about government officials who refused to perform their duties because of religious objections to same-sex marriage.

The pope said that he could not speak specifically about cases but that “conscientious objection is a right that is a part of every human right.”

“It is a right,” Francis said. “And if a person does not allow others to be a conscientious objector, he denies a right.”

The pope did not mention Ms. Davis, but added: “Conscientious objection must enter into every juridical structure because it is a right, a human right. Otherwise, we would end up in a situation where we select what is a right, saying, ‘This right, that has merit; this one does not.’ ”

While in Washington, Francis also made an unscheduled stop to see the Little Sisters of the Poor, an order of nuns that is suing the federal government over the Affordable Care Act’s contraception mandate.

Ms. Davis and her husband were in Washington anyway to receive an award from the Family Research Council, a conservative advocacy group, in recognition of her stand against same-sex marriage.

During Ms. Davis’s visit to the Vatican Embassy, “the pope came to her and held out his hand,” Mr. Staver said.

Ms. Davis asked the pope to pray for her, which he said he would, and then the pope asked Ms. Davis to pray for him, Mr. Staver said. They spoke in English, he said, and the pope gave the Davises two rosaries. Ms. Davis gave the rosaries to her mother and father, who are Catholics.

Many on the left are disappointed because they hoped that the Pope would be on our side.  And he is, on many issues (climate change, for one).  But as has been said so many times, this Pope (like all Popes really) does not fall into the left-right schism that we have in this country.  So we just have to eat this one.

The Back End Of The Kentucky Court Clerk

It looks like Kentucky County Clerk Kim Davis doesn’t want to go back to jail after all.

Kim Davis, the embattled Kentucky county clerk, at the center of the dispute over gay marriage and religious liberty, appeared to back down from the threat of more jail time Monday, saying while she still refuses to authorize marriage licenses, she will not interfere with a deputy clerk who began providing them more than a week ago.

Davis returned to work Monday, her first time in the office since her high-profile release from the Carter County Detention Center last week. Emotional and flanked by her son, Nathan, Davis read a statement outside the courthouse, bemoaning that her deputy clerks have been caught in the middle of her case.

“If any of them feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice and I will take no action against them,” she said. “However, any unauthorized license they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”

Great. Fine. Wonderful. Now go away.

Breaking: Kim Davis Released

Details coming.

UPDATE – 1:00 pm:  The contempt order was lifted by a US district court judge.  Unclear if it was the same judge who gave the contempt order or if it was lifted on appeal.

UPDATE – 1:15 pm:  It was the same judge:

A federal judge ruled Tuesday that a Kentucky clerk who has refused to issue marriage licenses to same-sex couples may leave prison — as long as she doesn’t interfere with the licenses that her deputies have been granting since her incarceration last week.

U.S. District Judge David Bunning ordered Rowan County Clerk Kim Davis released, and said that if she did not follow his guidance, “appropriate sanctions will be considered.”

Davis’ attorney, Mat Staver, told NBC News that accommodation was unlikely to suffice.

“We’re back to Square One,” Staver said. “She’s been released, but there’s been no resolution.”

Bunning’s order also requires the five deputy clerks in Rowan County to file status reports every 14 days detailing their compliance with his earlier orders that the office issue licenses to same-sex couples in accordance with a June U.S. Supreme Court ruling.

Davis, 49, has repeatedly defied the courts, saying that authorizing the licenses would violate her Christian beliefs. Arguing that her religious freedom is being compromised, she has asked state officials to develop alternative ways for the licenses to be issued without requiring her to authorize them.

Bunning ordered her jailed last Thursday, and she has become a national symbol of resistance to gay Christian supporters have rallied outside the lockup daily.

Mat Staver is a terrible lawyer.  Even Fox News calls him out for his stupidity:

[Fox News host Keith] Jarrett also called out Davis’s attorney [Mat Staver], who said it was “questionable” if the Supreme Court had the “constitutional authority” to rule on same-sex marriage.

“Whether the Supreme Court has constitutional authority?” the Fox News host said. “Article III Section 2 of the Constitution gives the Supreme Court constitutional authority to decide constitutional issues!”

Jarrett added that Staver’s statement appeared to be “stunningly obtuse.”

You may recall that prior to becoming a Fox News person, Keith Jarrett was THE main guy at Court TV for many many years.

Anyway, Staver is simply wrong when he says we are at square one.  Her clerks have been issuing the licenses, and will continue to do so.  In fact:

During proceedings on Thursday, Davis was offered to avoid jail if she allowed her deputies to issue the marriage licenses. She refused, and on Friday they began issuing them. The release order requires that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” If she refuses — as she seemed to promise to do last week — she would again be held in contempt.

So basically, Davis caved.  She accepted an offer that she rejected last week.  Here’s the order:

Kentucky clerk Kim Davis ordered released from jail

UPDATE – 3:00 pm:  I suspect the lawyer is talking out of turn:

A CNN journalist at the jail reported that according to her attorneys, Davis “has not changed her mind” and intends to bring the licensing process to a halt all over again when she’s back on the job.

“The problem here is that the attorney says she has not changed her mind, that Kim Davis is adamant that as long as her name appears on those marriage licenses, she objects and she will attempt to stop those licenses from being distributed,” CNN correspondent Martin Savidge said during a live broadcast.

Well, if she “intends to bring the licensing process to a halt” then she is violating the terms of her release.  That would be VERY serious trouble for her.  Her lawyer can SAY this, but it’s easy for him to say since she will end up paying the cost.

So she’s out, and here she is with Ted Cruz and her husband, who is NOT playing Lenny in “Of Mice and Men” (that’s just the way he dresses):

UPDATE – 3:45 pm: Heaven help me….

Huckabee is on stage with her. Ted Cruz? Well, he had her picture with her (see above), but otherwise, his trip seems to be a bust.  Huckabee had staffers there a few days ago, and he has inserted himself there front and center.

Digby:

Kim Davis’ inane lawyer upon her release from jail:

“She can never recover the past six days of her life spent in an isolated jail cell.”Too bad she wasn’t free to just quit her job — the solution all the free-market wingnuts prescribe for every other complaint a worker might have against her employer. Oh wait, she was.

Huckabee Needs To Attend Just One College Level Course On The Law

As far as conservative Christians candidates go, I always thought that Mike Huckabee was a slight cut above the rest.  He doesn’t seem dogmatic, and he was governor at one time.  So you would think that he would have some sense, while also being true to his conservative principles.

But this past week he has proved to be either a guy who thinks his followers are idiots, or perhaps he is an idiot.

It’s one thing to lend support to Kim Davis, the Kentucky law clerk now in jail for contempt of court because she refuses to issue marriage licenses to same-sex couples.  But the sheer ignorance coming from Huckabee in relation to that support is amazing.

Let’s start with this Huckabee quote:

“Gavin Newsome in San Francisco as mayor, performed same-sex weddings, even though it was illegal. Did he ever get put in jail? He most certainly did not.”

Nnnnope.  Gavin defended himself:

Put another way, bans on same-sex marriage had not been adjudicated illegal, nor was their a court order telling Newsome to stop issuing same-sex marriage licenses.  Once there was a court order, he stopped.  He followed the federal court order.

Kim Davis, as Huckabee cannot seem to get through his head, is in jail for violating a federal court order on a matter that had been fully judicated.

In other words, if Newsome had continued to issue marriage licenses despite the federal court order, THEN he would be in contempt of court, and like Kim Davis, could have been fined and put in jail.

Huckabee is also one of those guys who thinks Davis is like Rosa Parks, a citizen denied her rights by the government.  In actuality, she is George Wallace standing in the doorways of the University of Alabama — someone who is acting on behalf of the government who is denying rights to citizens.

And then Huckabee also said this:

“Jeffrey Dahmer got bail, Albert DeSalvo, the Boston Strangler got bail, John Wayne Gacy got bail. Kim Davis [the Kentucky clerk], because she followed her convictions is put in jail, and is not given bail.”

Is he kidding with that remark?  Does he know what “bail” is?

It is something criminal defendants get while they are being held awaiting criminal trial.  Let’s ignore that fact that Dahmer and other serial killers didn’t get bail AFTER they were convicted.  Let’s just point out that…. Kim Davis is not getting a trial.  And she is not a criminal defendant.  Congress vested federal courts with incredible power to “punish by fine or imprisonment, or both” any individual who disobeys or resists their dictates. This is what’s known as courts’ civil contempt power, and may include orders, judgments, instructions to appear, or other rules.

It’s comparing apples to oranges.  This, I suppose, was Huckabee’s clumsy way of trying to make the point that Kim Davis is being treated worse than Jeffrey Dahmer.  What horror!!  But does anyone really buy that?  Even Davis supporters?  Davis, unlike Dahmer, can get out of jail anytime she wants to.  And she can do it without changing her beliefs.  All she has to do is (a) agree to do her job; (b) resign or (c) allow others to do her that aspect of her job.  Dahmer, on the other hand, had no control over his future.

Ted Cruz is going to visit her now in jail, too.  Prepare for more absurdity.

Meanwhile, she has filed an appeal of the contempt of court penalty.

Here’s a good read: 5 Myths About Kentucky County Clerk Kim Davis You Shouldn’t Fall For

Kim Davis Is A Footnote To The Same-Sex Marriage Victory

I’m on vacation, but I am not completely off the grid.  I just have a higher bar (this week)n as to what interests me enough to blog about.

Checking in, I see not much has changed.  Trump is still testing the bounds of open bigotry.  Ho hum.

And I see that Kim Davis, who I wrote about last week, has achieved mainstream status.  She’s all over my Facebook.  Since I last wrote about her, she has been denied an appeal to the US Supreme Court, so basically, she has no legal recourse anymore, and she has to start issuing marriage licenses to gay and straight couples.

She is quite adamant about not doing it.  Her lawyers say it is “impossible” for her to do it.  Davis released a statement released yesterday in which she wrote: “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience.”

Well, isn’t that special?

She has become the spokesperson for religious hypocrisy too.  Despite her claims to literal biblical interpretation, she was married and divorced three times — in 1994, 2006 and 2008, according to U.S. News & World Report.  She gave birth to twins five months after she divorced her first husband. The father of those twins was her third husband, according to the records.  Her second husband adopted the twins, the news magazine said.

CN_QfbGVAAAtPtbWell, isn’t THAT special?

It seems to me that if she is working under God’s authority, then God should provide her a salary, and the state of Kentucky should not.  Or, as many many many people have said, if she cannot do her job, she should resign (she is an elected official).  The religious objection is a serious one, but she’s misusing it.  Think of it this way. Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.

Today is D-day — Davis Day — as she has to return to federal court on a contempt charge.  She is facing fines and imprisonment.

CN_RmNXWIAAzGUBI can see why this has national media attention.  This is a conflict for which there is no middle ground.  No compromise.   On one side are five same-sex couples who want their licenses in their own county; on the other is Davis, who wants to be free to refuse them and send them elsewhere. A court could hold for the plaintiffs and order Davis to do her job, or it could hold for Davis and tell the couples to go elsewhere. Those are the only two options.

Her lawyers at Liberty Counsel are boneheads.  They made a grievous error in advising Davis to defy the court’s order. And God knows the firm is easy to mock. Its website features a statement by Davis that “to issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience”—and beneath it, a request for a $25 donation in exchange for a book in which “two nationally-acclaimed real estate entrepreneurs share biblical principles to revolutionize your work and family life, and give you the courage to stand up for what is right.”  When you look all that Liberty Counsel has done for Ms. Davis, you wonder if they have Ms. Davis’ best interests at heart, as opposed to their own.  Such is the state of religion today.

But back to Kim.  Guess what?  She loses.  And it is not because she is Christian.  It is because we are a nation of laws.  Not religion.  The two can co-exist, but if you think religion trumps law…. well, don’t complain when you get called the American Taliban.

UPDATE:  Via Facebook, a not-yet-published interview with Rowan County District Attorney Cecil Watkins:

Exclusive. Just conducted an interview with Cecil Watkins, the Rowan County Attorney. Watkins (who to my knowledge) hasn’t given any interviews.

Watkins indicates that Kim Davis “does not represent” Rowan County and is not representative of its inclusive values.

From Day One, Watkins told David I “will not and cannot support” you in her defiance of the law. Not only that he was clear he would not represent her as the law in the case of same sex marriage is clear.

While he has no stance on same sex marriage, well-established federal law must be followed.

Watkins wanted to emphasize several other things.

First that everyone who works at the courthouse has endured cursing as they enter the building. And it’s not just at her office. Everyone in the courthouse is scared to come to work.

Second that Liberty Counsel will leave Kim Davis high and dry when this charade is over. Watkins thinks the funds they raise off the case should go to Rowan County.

Finally and most importantly he has learned that deputy clerks would issue lawful marriage licenses. They are simply afraid to do so. And if Judge Bunning instructs them to do so . . . they will.

Davis has put, in the words of Watkins, her employees and everyone in the courthouse in a “terrible position.”

Watkins, in his role as the County Attorney, will be in court tomorrow for the hearing at 11:00 in Ashland. He is pictured being sworn in.

Ed. Note – The takeaways from the Watkins interview are clear. Davis is acting alone in her zealous mission. Her conduct has terrorized not just her staff but everyone that works in the courthouse. And all for a foolish mission aided by out of state charlatan lawyers trying to raise money for their “religious liberty” mission.

Shannon Ragland
Kentucky Trial Court Review

UPDATE:

Kentucky County Clerk Still Defying Court Order

Citing her Christian faith and constitutional right to religious liberty, Rowan County Clerk Kim Davis refused to issue a marriage license to William Smith Jr. and James Yates after the U.S. Supreme Court legalized marriage this summer.

She was taken to court.

U.S. District Judge David Bunning ordered Davis to issue marriage licenses two weeks ago. He later delayed that ruling until Aug. 31 or until the U.S. 6th Circuit Court of Appeals issued a ruling.

Yesterday, the appeals court ruled; it denied Davis’ appeal.

So guess what happened this morning?

9:45 a.m.

William Smith Jr. and James Yates strode Thursday morning into their county clerk’s office for their third attempt to get a marriage license. The office of Rowan County Clerk Kim Davis once again denied them, despite an order from a federal appeals court issued hours earlier that upheld a judge’s directive to issue the licenses.

***

10:20 a.m.

William Smith Jr. and James Yates walked out of the clerk’s office, shaking their heads in bewilderment . . . they were turned away again.

“They just don’t like gay people, they don’t want us to get married,” Yates said. “And they’d rather burn the earth and not let straight people in Rowan County get married either.”

A deputy clerk in Davis’ office told Smith and Yates that the office believes Bunning’s delay remains in effect until Aug. 31. He refused to give his name or give them a license.

These religious hicks.

Kennedy’s Majority Opinion In The Same-Sex Marriage Case Is Conservative, Outdated And A Bit Offensive

Check out this argument, which I agree with, and which is making the rounds in one form or another:

The immediate consequence — the legalization of marriage for same-sex couples in all 50 states — is a civil rights victory and a step toward the betterment of our people. But Kennedy’s argument, which is no elegant piece of law, reinforces misconceptions about nontraditional families. And with respect to marriage, he is as conservative as his dissenting colleagues. All that divides them is who gets to say “I do.”

Kennedy’s descriptions of marriage as “a keystone of the nation’s social order” and “essential to our most profound hopes and aspirations” are flatulent exercises of cultural atavism. At a time when divorce is routine and fewer people marry or wait longer to do so because marriage is necessary neither for love nor family, sex nor companionship, his claims on behalf a “two-person union unlike any other in its importance to the committed individuals” are more fitting of a $2.99 Hallmark card than of Supreme Court jurisprudence.

These “mummeries and straining-to-be-memorable passages,” as Justice Antonin Scalia calls them, are not the extent of Kennedy’s conservatism. He also affirms the devaluation of unmarried people, particularly those with children. “Without the recognition, stability and predictability marriage offers … children suffer the stigma of knowing their families are somehow lesser,” he writes. “They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.”

But this is not a brief on behalf of extending marriage rights and benefits to same-sex couples. It is, rather, an argument for providing benefits to all families, even those that lack a married couple of any sexual orientation. That means single-parent families, couples who choose for whatever reason not to marry, families comprising parents and adult children who live with them, other blood relatives who live together and every other conceivable arrangement of people whose economic and emotional ties make them families in the substantive, if not juridical, sense.

Shorter version: Kennedy imagines that marriage is the be-all-and-end-all when it comes to sex, raising children, companionship, and love.  He is wrong on all those counts.  Marriage is merely an option that should be available to all who want it.

Pastor Calls For Execution Of Gays

I know.  He’s fringe and we shouldn’t pay attention to fringe.  But I couldn’t resist:

Pastor Steven Anderson, of Faithful Word Baptist Church, called for stoning to death ministers who performed same-sex marriage ceremonies and repeated his call for the execution of all LGBT people.

“I hate them with a perfect hatred,” Anderson shouted. “I count them mine enemies.”

Yeah.  I call for the stoning of anyone who says “mine enemies” instead of “my enemies”.

Anderson said the Bible consistently called Christians to “have the guts to stand up to our culture that is now accepts homos.”

“Where’s the call to repentance?” Anderson said. “Where’s the hope, where’s the love and the grace? It isn’t there.”

Now that’s  how I like my irony served up.

Bad Reactions

Helluva week last week.  Supreme Court rulings upholding Obamacare and recognizing same sex marriage as a right.  Obama sings at a funeral for slain pastor after he and others are killed by a white supremacist, and Confederate flags start coming down.  Good week for progressives.

They’re going nuts over at National Review Online.  The once austere magazine and website is looking more life something from the mind (ass?) of Glenn Beck.

National Review Online2

And more locally….

CHARLOTTE — A Wake County man has been charged with assault after police say he entered an LGBT bar, angrily criticized the Supreme Court’s ruling legalizing same-sex marriage and then slapped the owner.

The Charlotte Observer reports Mecklenburg County jail records show 21-year-old Lucas Dylan Wilhelmson, of Holly Springs, was charged with simple assault and with communicating threats in the incident which took place Sunday at The Bar at 316, which caters to the gay, lesbian, bisexual and transgender community.

Charlotte-Mecklenburg police spokesman Rob Tufano says Wilhelmson walked into the bar and started “calling out people using derogatory terms.” Tufano says after being asked to leave and escorted to the door, Wilhelmson began slapping the bar’s owner.

Wilhelmson was released on bail. It’s not clear if he has an attorney

Well, I guess you gotta expect this. But here’s the worst:  Texas Attorney General Ken Paxton issued a statement yesterday in which he argued that county clerks in Texas can refuse to issue marriage licenses if they have a religious objection to same-sex marriage, despite last week’s Supreme Court decision, to which he referred as a “fabricated” constitutional right granted by an “activist” court.

His statement began:

Friday, the United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist. In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live.

Wow.  “How to live?”  How did the Supreme Court tell anybody how to live?

They didn’t even try to tell people how to THINK!

Paston then goes on with a bunch of BS about religious objections, ignoring the fact that county clerks deal with divorce and other things which are religiously objectionable:

Texas must speak with one voice against this lawlessness, and act on multiple levels to further protect religious liberties for all Texans, but most immediately do anything we can to help our County Clerks and public officials who now are forced with defending their religious beliefs against the Court’s ruling.

For an attorney general to say that a Supreme Court ruling is “lawlessness” — well, you wonder why the people in that state feel as they do regarding the federal government.

The truth is that Paxton cannot do this.  If he wanted to, he could seek a rehearing from the Supreme Court on the issue.  He has 25 days to do this.  After that, it would be contempt of court every time a marriage license is denied.  Paxton probably knows this; he is probably grandstanding.  If not, this could become like Brown v Board of Education.  Will the National Guard be called in to make sure gay marriages can take place?

UPDATE:  This text exchange, however, is going viral.  A soon-to-be-wed man sends a message to a wedding photographer he retained:

Brentwood

Supreme Court Rules 5-4 To End The Sanctity Of Marriage

46 years ago this weekend, police in New York City raided a gay bar called the Stonewall Inn.

Obviously, this is the end (we hope) of a remarkable civil rights story (despite my snarky headline).  Here’s the opinion.

Reactions are about what you expect.  I will update as the day goes on.  But the important thing is that about 3 million gay people just won the right to become married.

The dissents are interesting.  They all take pains to say, “Hey, I’m happy about the result!  Seriously!  Go celebrate!”, just before launching rather odd objections.

The main dissent is by Chief Justice Roberts, but all of them take great pains to say, essentially, “Hey *I* don’t have a problem with gay marriage”.  The thing they object to, universally in dissent, is that the court should not decide.  They would rather have this worked out in a democratic fashion.

I think Kennedy, writing for the majority, dispenses with this.  First of all, it has come up through the courts.  There is a split in the circuits.  It IS a legal question.  And the Constitution supersedes democracy.  End of story.  If I had a bone to pick about the majority opinion, it is this: Once again, Justice Kennedy did not spell out what constitutional test he was applying to a claim of gay equality.  It simply discussed a series of court precedents, and his own recitation of notions of liberty, without saying what burden those challenging the bans had to satisfy before winning the right to equality.

The dissents also mischaracterize the majority opinion, saying things like “the majority views bans on gay marriage as unwise“.  No, the majority views same-sex marriage bans as UNCONSTITUTIONAL and a violation of the 14th Amendment.  The majority is not substituting its preference for that of legislatures — they are doing what upper level courts often do, i.e., decide whether something is constitutional or not.

Ironically, while the dissent says the majority is acting extra-judicially, many of the dissents arguments have little to do with the actual law (instead, they argue policy, democracy, etc.)

Breakdowns and reactions below the fold

Gay Marriage Leads To Divorce

You know that silly argument that same-sex marriage harms the institution of marriage?

Pretty dumb, right?  What do they think is going to happen?  If gay people get married, straight married couples will get divorced??? LOL!!!

Well, actually, not so LOL.  Gay marriage could in fact lead to divorce among straight couples.

Or rather, one straight couple.

Who are being total dicks to prove a point:

A Canberra Christian couple who have vowed to divorce if same-sex marriage is legalised may not be able to follow through with their plan due to the legal prerequisites for divorce.

Director of the Lachlan Macquarie Institute and former ACT director of the Australian Christian Lobby, Nick Jensen, said he was prepared to divorce his wife of 10 years in protest if same-sex marriage is legalised by Federal Parliament.

Mr Jensen said he planned to continue living with his wife Sarah and be married “under God”, but divorced in a legal sense.

“It’s not extreme in our eyes, it’s simply a natural consequence of our conscience,” he said.

“When we signed the contract 10 years ago we made a contract with the state about what marriage is, which was husband and wife, fundamental order of creation, part of God’s intimate story for human history, man and woman for the sake of children.

“So if the state then goes and changes the terms of that contract, then that’s something we can no longer partake in, it makes the contract null and void essentially.”

Now, I know nothing of Australian law, but I know enough to know this is among the stupidest things ever said on that continent.

I mean, if you have a contract between the yourself and the guy who is going to paint your house, and *I* have a contract with the same guy to paint *my* house, it doesn’t mean that I have the same house as you, or that we are painting it the same color.  Get my metaphor?

And even if I disagree with your contract with the painter, it sure as hell doesn’t make MY contract “null and void”.

But stupid analogy aside, this stunt is resulting in pretty strong backlack for Nick Jensen.  Even his pro-marriage-equality brother is coming to his defense (“he has a right to speak” and all that).

I certainly agree with Jensen’s right to his anti-equality views, although I don’t find them to be pro-Christian at all.  And frankly, if he’s not enjoying the backlash, he shouldn’t have performed the stunt — a stunt which embraces a very hurtful stance.

 

Same-Sex Marriage Still A Battlefield In North Carolina

This morning, North Carolina legislators in the GOP-controlled state House approved a measure that allows some court officials to refuse to perform same-sex marriage duties because of their religious beliefs.

House lawmakers agreed 69-41 to override Governor Pat McCrory’s veto of the bill, which the Senate had done last week​. The bill, now a law, allows magistrates and register of deeds workers the option to stop fulfilling their duties regarding gay marriages if they have “sincerely held religious” beliefs.

Once they seek an exemption from their duties, workers cannot perform any type of wedding for at least a six-month period. That inaction possibly could cause significant delays for couples wishing to marry.

It’s a dumb law, and I don’t know why it is important for NC to have, since I doubt any magistrate would feel right about causing six-month delays in ALL marriages.  More to the point, it is an unconstitutional law, and everybody knows it, so it just makes North Carolina look like a bunch of religious bigots.

UPDATE:  I did not know this

Several magistrates resigned after being warned that their oath of office stipulated they officiate for any couple with a valid marriage license. Two of these former magistrateshave filed suit against the state, arguing that they resigned under duress. They claim that they should not be forced to choose between their job and their religious beliefs, even if their beliefs prohibit them from performing their job in a way that serves all citizens.

The Crazy North Carolina Legislature

(1)  Jerks:

Lawmakers passed a bill Wednesday that would make North Carolina one of several states with 72-hour waiting periods for abortions. Gov. Pat McCrory said he planned to sign it, despite the urging of opponents who wanted him to stand by his statement during his 2012 campaign that he would not sign any further restrictions on abortion if elected. In announcing his plans to sign the bill, Mr. McCrory, a Republican, argued that it would not restrict access. Supporters have said that increasing the waiting period from the current 24 hours will give pregnant women more time to collect information. The bill’s House sponsors also said they hoped the measure would lead to fewer abortions. Democratic lawmakers and other opponents have said that there is no medical reason for increasing the wait and that Republicans are seeking to add more hurdles to a procedure that courts have ruled to be constitutionally protected.

(2)  Bigots:

The state Senate voted Monday night to cancel Gov. Pat McCrory’s veto of a bill that would allow some North Carolina court officials to refuse to perform gay marriage activities because of religious objections.

The 32-16 vote was above the three-fifths threshold necessary to override a veto. The bill still must clear the House again for the veto to be blocked and the law enacted. That vote was scheduled for Wednesday in the House, where the outcome is less certain because 10 lawmakers were absent last week when the bill first passed.

McCrory, a Republican who vetoed the bill within hours of final legislative passage, saying no public official voluntarily taking an oath to support and defend the Constitution should be exempt from upholding duties. The bill followed within a few months of federal judges striking down North Carolina’s 2012 constitutional amendment prohibiting gay marriage.

UPDATE: (3)  Yes, I left out Ag-Gag, which makes me want to ag-gag:

Both the state House and Senate voted Wednesday to override Gov. Pat McCrory’s veto of House Bill 405, a law that proponents say protects private property rights but opponents say muzzles whistleblowers.

Dubbed an “ag-gag” measure by its critics, the bill gives businesses the right to sue employees who expose trade secrets or take pictures of their workplaces. Animal rights groups say the measure is aimed at curbing the kind of undercover investigations that have exposed abusive practices in factory farms and slaughterhouses.

 

 

 

Catching Up

The merry month of May is a busy one.  Fortunately, not a lot is happening news-wise upon which I feel the urge to pontificate at length.  However, I few tidbits are worth at least a passing mention:

  • Yay, Ireland for the feckin’ landslide to legalize same-sex marriage.  Significant, I think, in light of the strong Catholic sentiment there.  Seems that Rome is really out of lockstep with much of the flock.
  • Mad Max: Fury Road is everything people say it is, for better or worse.  It’s adrenaline, which means that even if you don’t like it, you’ll enjoy the incredible effort that must have gone into making it.  Steampunk Mario Brothers, as they say.
  • RIP John Nash:

    John Forbes Nash Jr., a mathematical genius whose struggle with schizophrenia was chronicled in the 2001 movie “A Beautiful Mind,” has died along with his wife in a car crash on the New Jersey Turnpike. He was 86.Nash and Alicia Nash, 82, of Princeton Township, were killed in a taxi crash Saturday, state police said. A colleague who had received an award with Nash in Norway earlier in the week said they had just flown home and the couple had taken a cab home from the airport.

  • The Josh Duggar apologia from the Christian right has been pretty sickening.  The speed with which they “forgive” and pray for Josh Duggar is alarming.  Almost no mention of praying for his victims.  I’ve read so many articles that say, “Josh Duggar was wrong, BUT…..”.  And yes….. technically, he was an underage teen, but I don’t find that to be an excuse — at 17, you’re old enough to know not to molest your sisters and their friends in their sleep.  More importantly, we are learing more about the Duggar’s “purity culture’, and what it does to silence its victims.  And of course, all the forgiveness overlooks the ugly cover-up where the Arkansas Republicans worked to get the police record of the investigation into Josh’s assaults expunged.
  • This will probably develop into a more full post at some point, but I can’t quite get on board with the objections from some womens’ groups about the “gratuitous rape” scenes in HBO’s Game of Thrones.  First of all, anyone who has watched the series at all knows that the show doesn’t pull any punches on a number of fronts.  Incest, horrific and bloody murders, rapes…. they are all in there.  I don’t quite understand why, in Season 6, some people are suddenly finding one aspect of this dark dark show to be objectionable.  Secondly, speaking specifically of the rape of character Sansa Stark two weeks ago, it was not (compared to other GoT scenes) very graphic.  There was no nudity nor was it violent.  It was tame by Game of Thrones terms.  But it was a rape.  And notably, everyone agrees that the scene was exceedingly disturbing…. as depiction of rape should be.  To me, a gratuitous rape scene would be one which was clearly thrown in just to thrill and titillate the audience.  This was not that.  I recall many years ago when Edith Bunker was raped on an episode of the 1970s hit comedy All In The Family.  It was, to my knowledge, the first depiction of rape on television (although the actual rape was not shown).  There was the same sense (in some corners) of outrage — what is rape doing on the entertainment box?  Well, I understand that people don’t want their comedies, or violent medieval dramas, sullied with real-life horrors.  But rape happens, and it is ugly.  I don’t mind that ugliness in my fiction, as long as it is not glorified, and especially if it gets people talking about it.

The Battle For Same Sex Marriage: A Timeline Graph

I love this graph from an article in today’s New York Times.  It shows what states did for and against the idea of same-sex marriage.

SSMovertime

You can see that the anti-SSM movement got out ahead of the issue in the mid 1990s by enacting laws banning same-sex marriage.  I have no way of proving this, but I think that by making same-sex marriage an issue, it became, well, an issue.  And that motivated same-sex marriage proponents to organize and lobby and take the issue to the courts.  Once Massachusetts ruled that same-sex bans were unconstitutional in 2003, the floodgates opened.

I don’t think the floodgates opened because the notion of same-sex marriage became fashionable or popular.  I think they opened because once people started to examine and think about the issue, there was simply no constitutional (or even moral) reason for the government to discriminate against homosexual love.

But yeah.  If you had asked me in 1995 if there would be such a thing as legally-recognized gay marriage in this country, I think I would have answered “someday, but not in my lifetime.”  It is the great civil rights issue of my generation, and I really believe it will be over in June.

Same-Sex Marriage Case Being Heard In Supreme Court Today

Today, the US Supreme Court will hear oral arguments on Obergefell v. Hodges, one of several same-sex marriage cases brought to the Court.

Obergefell v. Hodges requires the Court to answer: “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?”

The Washington Post has information on the lawyers who will be making the arguments.

SCOTUSblog is liveblogging the oral arguments.  Here are some snippets, as reported by SCOTUSBLOG:

[T]here was one interesting exchange between Justice Scalia and two of his more liberal colleagues. Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back-and-forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings… by Eric Citron 10:44 AM

And this…..

One very interesting aspect of the early argument was that it was primarily a set of questions about what “marriage” means as an institution, and accordingly, whether it is “irrational” or “invidious discrimination” to exclude gays and lesbians. As a consequence, you had some Justices emphasizing the “millennia long” definition of marriage as between a man and a woman, and other Justices — like Ginsburg — emphasizing the relatively new character of egalitarian marriage, now sponsored by the state governments, on which gays and lesbians were seeking to enter. You also had a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece). There was a parallel line of questioning about whether bans on interracial marriage were as consistent as the “millennia long” definition of marriage as uniting a man and woman. Doctrinally, this all seemed to float somewhere above the bottom line question of whether states were discriminating against gays and lesbians or somehow marking them as less favored members of society… by Eric Citron11:05 AM
And…
So several Justices wanted to know, for example, whether a state could deny recognition to all marriages performed in another state. They were skeptical when the suggestion was that a state might be able to do that…. by krussell12:40 PM
And….
A little surprisingly, Justice Scalia asked tough questions of the State — he wanted to know why the text of the Full Faith and Credit provision did not extend to marriages… by krussell 12:38 PM
UPDATE (11:08 am):

This….

UPDATE #2:  Here are the audios of the arguments….

First question —

PART ONE

Fast forward to the 27:00 mark if you want to hear the “burn in hell” protester and Scalia’s quip afterwards.

PART TWO

Second question —

Fourteen Of The Oddest Legal Arguments Against Same Sex Marriage

MSNBC’s Irin Carmon has read all the amici briefs (or “friend-of-the-court” briefs) submitted to the U.S. Supreme Court in its upcoming same-sex marriage case (to be heard next week), and picks out some of the oddest arguments against gay marriage.  Read the whole thing:

1. Marriage equality will kill people. The group Mike Huckabee Policy Solutions — which says it is “neither authorized, funded, directed nor controlled by Gov. Huckabee,” but simply advocates for his views — teamed up with Paul Cameron, an anti-gay researcher who has been repudiated by the major social science organizations, to make this argument. They are concerned that “Justice Kennedy is apparently unaware of the strong scientific linkage that has been documented between same-sex marriage and early mortality.” The authors claim that “individuals who engage in homosexuality” die younger. They perused newspapers for “homosexual obituaries” to measure whether being partnered at the time of death had any impact on the age a person died. Since they got inconclusive results, they conclude that marriage won’t make gay people live longer.

2. Marriage equality will cause more opposite-sex couples to break up. Many briefs argue that recognition of same-sex marriage will ruin marriage for everyone. ”After all,” a brief co-authored by National Organization for Marriage co-founder Maggie Gallagher explains, “if society understands marriage to exist predominantly for adult happiness” — which they say is the major rationale for recognizing same-sex unions — “then the idea of sticking through hard times for the good of others, be it children or a spouse, will decline further.”

3. Marriage equality will cause 900,000 abortions. A brief from “100 Scholars of Marriage,” led by a former clerk of Justice Antonin Scalia, takes that same highly suspect argument that heterosexual marriage will decline if more states recognize the rights of gay couples. Combining that with the unrelated data point that the abortion rate is higher among unmarried women, the “scholars” predict that “under reasonable assumptions,” the Supreme Court’s recognition of marriage for same-sex couples would lead to “nearly 900,000 more children aborted” in the next 30 years. The authors explain, “The mechanism is simple and intuitive: Fewer opposite-sex marriages means more unmarried women, more children born to unmarried mothers, fewer total children born, and more children aborted.”

4. Marriage equality would destroy the economy. These “scholars of marriage and fertility” claim in their brief that, by implying that marriage is about more than “biological procreation,” same-sex marriage would mean everyone would have fewer babies, which in turn would “over time result in a reduced demand for goods and services and an aging work force, which results in fewer available workers to support social programs.”

Log Cabin Republicans Barred From Conservative Convention

The Western Conservative Summit is a gathering of the most influential newsmakers of the right.  The convention this year is scheduled for June in Denver, where thousands of conservative activists will gather to hear Republican presidential hopefuls like Wisconsin Gov. Scott Walker and former Pennsylvania Sen Rick Santorum speak. The event is organized by The Centennial Institute, a think tank affiliated with Colorado Christian University.

The Log Cabin Republicans have been barred from the Western Conservative Summit.  Like every other organization who wishes to have a presence at the convention, the pro-gay GOP group paid the $250 fee to apply for a sponsored table. However, according to the Denver Post, Log Cabin later received a message from the Centennial Institute — the Colorado Christian University-affiliated sponsor of the summit — informing them that they cannot officially participate as a “partner, exhibitor, or advertiser.”

Why? Because the group’s “worldview and policy agenda are fundamentally at odds with what Colorado Christian University stands for, so it’s just not a fit,” read the Institute’s note. “I’m sorry it has to be that way.”

Members of the pro-gay group are still free to buy tickets and attend the event, the sponsors are quick to note. “They’ll take our money, but want us in the closet,” responded Michael Carr, an official with the state’s chapter of the Log Cabin Republicans.

How did the Centennial Institute respond to this controversy?  I’ll print their Facebook response in full (lest I because of omitting something important):

We’ve been asked who’s welcome at Western Conservative Summit 2015. The answer: everyone! Come one, come all: conservatives, moderates, and liberals; black, white, Hispanic, or Asian; young or old; immigrant or DAR; Republicans, Democrats, libertarians; gay or straight. WCS year by year has been about building a coalition of all ages, all colors, and all backgrounds, devoted to reviving liberty and sharing Judeo-Christian truth and love. Did we notify a GOP group advocating same-sex marriage that their members are welcome as individuals but they’re not eligible organizationally as an exhibit partner? Yes, because CCU as sponsor of the Summit has a biblical position opposite to theirs that we’re duty bound to uphold, as the link explains. We hope some of these folks, the Log Cabin Republicans, sign up as WCS15 delegates and come for all the points of agreement held in common, leaving the marriage disagreement for debate elsewhere.

I love how the first part is in direct contradiction of the second part, i.e., we welcome everybody, including gays, exhibit for the part where you actually are, you know, gay.

I understand why a gay person could believe in, say, smaller government, a bigger military, concealed weapons, “pro-life”, etc.  I mean, just because a person is homosexual does not mean they cannot support some — or even most — of the GOP platform.  But even as I say that, I have a hard time understanding these Log Cabin Republicans.  I mean, how much humiliation must they go through before they realize that the rank and file of the Republican party thinks they are less than human?  I know, I know — “change from within” and all that, but they would have an easier time converting Democrats to Republican views on the economy and foreign relations than they would moving Republicans off of their anti-gay stance.

Anyway, read the comments section on the Centennial Institute Facebook page.  It’s amusing.

“Cake Is Speech”: The New Dumbest Thing Ever Said

Yes, cake is speech.

That’s what Indiana Baptist pastor Tim Overton told NPR’s Steve Inskeep yesterday morning, defending his state’s controversial “religious freedom” law.

No, it’s not some fringe theory: It’s shaping up as a core tenet of one “compromise” approach to religious freedom laws that’s under consideration, in the wake of the backlash to the Indiana law, which Overton fervently supported as written. It’s at the heart of the fix to the law Jeb Bush pushed Wednesday night with pro-gay rights Republican donors.

Here’s how the pastor tried to explain it: Critics who say Indiana’s Religious Freedom Restoration Act would let businesses routinely deny service to LGBT Americans are wrong. “I don’t think any RFRA anywhere would say, ‘I’m not gonna give you a hotel room, I’m not gonna give you a hamburger, or gasoline or groceries,’” Overton told Inskeep. “That’s outside the bounds.”

But just as a religious leader should be able to decide, according to the tenets of his or her faith, whether to preside over gay marriages, Overton argued, so should a florist or a baker get to decide whether his or her “artistic ability” should be part of a gay wedding.

I think most Americans would agree that a pastor like myself should not be compelled by the government to use my speech to support someone else’s perspective. I think that has parallels to the cake maker. The cake maker is using his or her artistic ability to make a cake and that cake communicates something. I think that cake is speech, that says ‘we celebrate this union.’ I just don’t think they should be forced by the government to use their speech to support someone else’s perspective….I would like the line to be drawn in services that involve speech.

When Inskeep asked how society would determine what type of service represented “speech,” Overton punted and said that would be up to courts. “I think that distinction will be played out in the court,” he replied. “All the legislature can do is pass principles to guide the court.” So is a pepperoni pizza “speech”?  Hey. judge, tell us…..

The Indiana Fix

The proposed new bill working its way through the Indiana state legislature today seems to negate the worst things about the RFRA law:

It doesn’t undue Hobby Lobby or other grievances.  The changes would not establish sexual orientation and gender identity as a protected class under the state’s civil right’s laws.  That will have to come another day.  All this does is say that the Indiana RFRA cannot be used to discriminate, nor can it be used as a defense in a lawsuit for discrimination.

On the other hand, you have to ask yourself…. if the original “unfixed” law did not discriminate, why are so many on the right claiming that their side “lost”?

UPDATE:  Angie’s List is having none of it.  Angie’s List, one of the first companies to object to Indiana’s religious freedom law, on Thursday morning said that the changes proposed by Indiana lawmakers did not go far enough in addressing the company’s concerns.

Oesterle said that as long as the Religious Freedom Restoration Act (RFRA) remains in place and Indiana does not provide further protections for gays and lesbians, Angie’s List will not expand its presence in the state, according to the Star.

“Employers in most of the state of Indiana can fire a person simply for being lesbian, gay, bisexual, transgender or questioning. That’s just not right and that’s the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state,” Oesterle said in the statement.

Arkansas Governor Wisely Seeks To Avoid Same Headache That Indiana Has

Moments ago, Arkansas Gov. Asa Hutchinson said that he does not plan to sign the version of the religious freedom bill that currently sits on his desk and called on the state legislature to make changes before sending it back to him.

Hutchinson, who called the issue “divisive” and cited his own son as an example of someone urging him to veto the bill, made the announcement during a Little Rock press conference Wednesday morning.

The Arkansas House on Tuesday approved a religious freedom measure that mirrors the one Indiana Gov. Mike Pence signed into law in Indiana — sparking outrage from businesses, sports organizations and popular culture figures who said it opened the door to discrimination against gays and lesbians.

Hutchinson, a Republican in his first year in office, said Monday that he’d sign the measure — but that was when lawmakers were still trying to find tweaks that ultimately eluded them.

Bigots Get It

At yesterday’s press conference, Indiana Governor Mike Pence spent a great deal of time blaming the media for its representation that Indiana’s RFRA law allows businesses to discriminate against gay people.  “Not true”, Pence said.  Well, it is true if you read the actual law, and apparently, even the bigots think so:

WALKERTON, Ind. -A small-town pizza shop is saying they agree with Governor Pence and the signing of the controversial Religious Freedom Restoration Act.

The O’Connor family, who owns Memories Pizza, says they have a right to believe in their religion and protect those ideals.

If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,” says Crystal O’Connor of Memories Pizza.

She and her family are standing firm in their beliefs.

The O’Connor’s have owned Memories Pizza in Walkerton for 9 years.

It’s a small-town business, with small-town ideals.

“We are a Christian establishment,” says O’Connor.

The O’Connor family prides themselves in owning a business that reflects their religious beliefs.

We’re not discriminating against anyone, that’s just our belief and anyone has the right to believe in anything,” says O’Connor.

So, when Governor Pence signed the Religious Freedom Restoration Act into law, the family was not disappointed.

“We definitely agree with the bill,” says O’Connor.

When ABC 57 asked O’Connor about the negative backlash the bill has been getting for being a discriminatory piece of legislation, she says that’s simply not true.

I do not think it’s targeting gays. I don’t think it’s discrimination,” says O’Connor. “It’s supposed to help people that have a religious belief.”

I do believe that the Indiana RFRA legislation has now been sufficiently clarified, yes?

I mean, I guess … thank you, O’Connor family? You have done a great job showing exactly why this law is so awful, the kind of mean-spirited bigotry it was passed to enable, and the degree to which all of Pence’s talk of the Golden Rule and how Hoosiers are too nice to discriminate has been a shameless lie. You are the perfect voice for this, which is to say you are abhorrent, un-Christian people.

Of course we know the likely next chapter of this story: the O’Connor family goes whining to the right-wing media about how mean people have been to them (on Yelp, for instance) since they bravely expressed their bigotry and announced their intention to discriminate. Cry me a damn river.

By the way, what respecting wedding couple — gay or straight — would have pizza at a wedding?

Pence Lies Himself Into A Corner

UPDATE:  Pence is giving a press conference this morning in which he re-asserts that the Indiana RFRA is just like the federal RFRA and the RFRAs passed in 30 other states.  He is lying (or is stupid).  It is similar, but has important differences.  He’s playing the victim, claiming (repeatedly) that he and Indiana are being “smeared”.  Still, he’s calling on the Indiana General Assembly to “fix” the bill.  Bit of a mixed message.  It also bears repeating — Indiana Assembly Democrats offered an amendment to #RFRA saying it couldn’t be used to discriminate. GOP legislators voted that down.

Indiana Gov. Mike Pence has been all over the media for the past few days, pretending the “Religious Freedom Restoration Act” has nothing to do with discriminating against LGBT people, and yesterday he announced that he’d push for a “clarification” of the bill, to show that it doesn’t do that thing everybody knows it does.

Pence has a problem, though; the anti-gay activists who helped ram this bill through the Indiana legislature are opposed to any such clarification, because of course they are.

Micah Clark of the American Family Association’s Indiana chapter, who stood right behind Pence, along with several other Religious Right leaders, when he signed the bill into law and has quite a record of anti-gay activism, said today that he opposes any such clarification.

He told AFA President Tim Wildmon today that conservatives should call Pence and other state officials and demand that they oppose any effort to clarify that the law does not legalize discrimination: “That could totally destroy this bill.” (In Georgia, supporters of a similar bill also opposed a push to ensure that the legislation will not permit discrimination in business.)

Wildmon agreed, adding that the Indiana law is necessary to protect anti-gay business owners from “persecution.” The law’s critics, Wildmon claimed, are waging “spiritual warfare” against state officials.

Here’s a photo originally posted proudly by Micah Clark, showing Clark and several other anti-gay activists standing with Pence when he signed the RFRA, with annotations added by GLAAD to make it very clear that Pence is simply lying about its intent.

pencelies

Let’s get real.  The real motive behind much of the “religious liberty” crusade is this: an effort to depict religious conservatives as an embattled but righteous remnant engulfed in a self-destructing society, and wishing only to be left alone to their own beliefs and customs. But the definition of “left alone” inevitably involves friction with social norms, which politicians promoting this meme wish to exacerbate, not mitigate. And so the alleged “shield” of religious liberty protections becomes a “sword” for eroding civil liberties for others. It is impossible, ultimately, to ignore the precedent set in the fight for civil rights for African-Americans, where opponents also retreated to a position of “simply” demanding the right for private parties to live their lives and conduct their businesses according to “custom.” Here’s how People for the American Way recently put it:

Fifty years ago, Americans decided that a private business owner who serves the public can be required to abide by laws prohibiting discrimination on the basis of race, color, religion, sex, or national origin. Since then, many states and municipalities have added prohibitions on discrimination based on other characteristics like disability, sexual orientation, and gender identity. It is those laws that some religious conservatives are objecting to, arguing that they should be free to refuse to provide services to same-sex couples even when states have decided as a matter of public policy to ban anti-gay discrimination.

Many religious conservatives object to the civil rights model for looking at this issue on grounds that sexual orientation is a matter of “choice,” not nature, a position that fewer and fewer people accept the more they get to know LGBT folk. But at bottom, their scriptural objections to homosexuality are no stronger than the scriptural objections to racial integration cited so often in defense of Jim Crow. And like them, the current efforts to identify Christianity with homophobia will look ludicrous and shameful in a generation or less. So when we are told these poor innocent conservative religious folk “just” want their consciences respected, and that means a zone of sanctioned discrimination must be created for them, the proper answer isn’t to dismiss religious liberty as a legitimate concern, but instead to ask: does your liberty really require a right to discriminate, and to disobey laws others must obey? It’s the self-definition of the right to discriminate that’s so dangerous here, and so tempting to bigots.

The Indiana “Religious Freedom” Law Isn’t Like Past Laws

Last, week, Indiana Gov. Mike Pence stirred up controversy when he signed a “religious freedom” bill into law.  The law has businesses and civil rights groups up in arms and threatening — or in some cases pledging — to boycott the state.  Critics assert the law could be used by individuals and businesses to discriminate on the basis of religion — particularly against the LGBT community of lesbian, gay, bisexual and transgender individuals.

Pence has been trying to use the “nothing to see here” and “everybody’s doing it” defenses to the new law, which is why he’s loath to get into the law’s details and admit that the statute he signed is not just like the federal Religious Freedom Restoration Act and not just like most other states’ RFRAs.

At the Atlantic, Garret Epps has a good simple description of how the Indiana statute differs from most precedents:

[T]he Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.

So Indiana is trying to create a genuinely plenary zone of sanctioned discrimination, including every kind of entity and protecting discriminators from legal action from any direction. The first point carries it beyond SCOTUS interpretation of the federal RFRA in the Hobby Lobby case as covering “closely held” corporations, but not all for-profits. And the second means Indiana isn’t just protecting religious folk against the all-powerful government, but against the very targets of their discrimination.

You Would Think These People Should Know Better Than To Opine

Unbelievable:

Indiana Governor Plans To Sign Pro-Discrimination Bill Into Law

The signing would make Indiana the first state to enact such a change this year among about a dozen where such proposals have been introduced. The measure would prohibit state and local laws that “substantially burden” the ability of people — including businesses and associations — to follow their religious beliefs.  Conservative groups say the Indiana measure merely seeks to prevent the government from compelling people to provide such things as catering or photography for same-sex weddings or other activities they find objectionable on religious grounds.

It is difficult for me to understand how this is not akin to the fervently held religious beliefs that the races should not “mix” in marriage, and the anti-miscegenation laws that emanated from those beliefs. Of course, in 1967 the U.S. Supreme Court struck down those laws as unconstitutional in Loving v. Virginia. How is this any different from a 1960s lunch counter owner denying service to African Americans because of his religious beliefs (widely held at the time) that “Negroes” were lesser human beings and citizens than white folks?

Taken to their logical and extreme conclusion, such laws could allow someone to ask to be exempted from meeting the requirements of the Americans with Disabilities Act, if that person’s religion believed (as in much of the Old Testament) that physical infirmities were the result of the afflicted person’s sin (or that of his parents), and “my religion condemns sin rather than cooperating with it.”

But these debates and legislation are not fueled by the religious adherent’s condemnation of sin. Chances are, the florist who refuses to provide flowers for a gay wedding does not deny service to a bride who is on her second or third marriage. Jesus is silent about gay marriage, but roundly and emphatically condemns remarriage after divorce. The photographer who refuses to take pictures for a lesbian marriage (because it is against God’s will) should also decline to photograph a lavish and ostentatiously expensive wedding (Jesus talks a lot about the sinful nature of greed). If this were seriously about not serving sinful people, then obese people would be turned away from fast-food outlets as obviously living the sinful “lifestyle” of a glutton. If this were really about condemning sin, then service would be denied to all sinners, not just a particular sin among a particular, targeted group.

Make no mistake: These legislative bills, like the one about to become law in Indiana, are about exempting some people from having to comply with non-discrimination laws already in place for LGBT people, as well as pre-empting and forestalling any efforts to put such protections in place. This is old-fashioned discrimination all dressed up in ecclesiastical vestments and “religious freedom” language. But it is still discrimination, pure and simple, against a targeted group of fellow citizens. No amount of cloaking such legislation in the garb of “freedom of religion” is going to turn this sow’s ear into a silk purse.

Fortunately, big Indiana employers like Cummins Engine have opposed the law, and Gen Con, a major gamer convention, has threatened to pull out of Indianapolis if it becomes law. Indianapolis’ Republican mayor is concerned that it will send “the wrong signal” about his city and state. Which, to many, it will.

But the real prize is the NCAA, headquartered in Indianapolis.  The NCAA basketball championships are held every five years In Indiana, including this year.  Will this organization step up to the proverbial plate (wrong sports metaphor – I know) and pull out of Indiana? [UPDATE: NCAA says the Final Four games will go on in Indiana despite concerns over anti-gay bill ]

Good Briefs: Amicus Filings in the Supreme Court Marriage Equality Case

Last Friday was the deadline to submit amicus briefs to the Supreme Court in support of marriage equality. Over 60 different briefs were filed by various “friends of the court,” including coalitions, organizations, scholars, and individuals. Contained within them are a variety of arguments in favor of recognizing same-sex couples’ right to marry, ranging from the more legal and technical to the more historical and personal.

And a few odd ones.  Here is one from the Cleveland Choral Arts Association, complete with West Side Story lyrics and everything (it really gets going at p. 29)

Cleveland Choral Arts Association Amicus Brief by Equality Case Files

But there are obviously more serious ones that tackle the arguments made same-sex opposition.

Social conservatives still argue that because only different-sex couples can biologically produce children, only they should be allowed to marry.   But children actually present a compelling case for same-sex couples’ right to marry.  There are many amicus briefs to the court on this subject, from such organizations as the Donaldson Adoption Institute, the Child Welfare League of America, the North American Council on Adoptable Children, and Voice for Adoption.  Here is an excellent “Voices of Children” brief, filed by the Family Equality Council and COLAGE — it highlights the tens of thousands of children being raised by same-sex couples who have benefited or could benefit from their parents marrying.

Family Equality Council, et al., Amicus Brief by Equality Case Files

And you know the argument rooted in “traditional” marriage?  And how we can’t go changing the definition of marriage?  Well, the American Historical Association has something to say about that.  Their brief outlines the many ways marriage has changed over time. “The historical record contradicts attempts to cast marriage as serving any single, overriding purpose,” the historians write. “And it contradicts attempts to present marriage as a static institution so rooted in ‘tradition’ as to insulate it from constitutional challenge.” To the contrary, they note, “marriage has remained a vital institution because it is not static.”

Historians of Marriage & American Historical Association Amicus Brief by Equality Case Files

And finally, the religious liberty argument.  Conservatives attempt to justify marriage discrimination against LGBT people based on their religious beliefs.

But an amicus brief from a large coalition of religious organizations emphasizes that “civil recognition of same-sex relationships through lawful marriage is fundamentally consistent with the religious pluralism woven into the fabric of American law, culture, and society.” Many religious traditions now ordain gay and lesbian clergy, welcome same-sex couples and their families, and affirm the inherent dignity of LGBT people, including their right to marry someone of the same sex and have that union solemnized in faith. This, they point out, has no implications for those with different views, whose anti-gay religious beliefs and traditions will still be protected under the Constitution. Signers of that brief include leaders of the Episcopal Church, the UCC, various rabbinical associations and synagogues, the Unitarian Universalist Association, Muslims for Progressive Values, and LGBT groups from Presbyterian, Methodist, and Lutheran denominations.

Episcopal Church, et al. Amicus Brief by Equality Case Files

(HT: Equality Case Files.)

Alabama and Gay Marriage

Well, you know we’ve crossed over when Alabama starts with the gay marriage thing.  An order from a federal judge allowing gay marriage was to take effect this morning.

But what’s that?  It’s Chief Judge Roy Moore (a state, not federal, judge) to the rescue.  If you don’t remember, Judge Moore is often known as the “Ten Commandments Judge.” When Moore, a devout Christian who often relies on Biblical scripture in his rulings, began his judicial career as an Alabama circuit court judge in the 1990s, he placed a Ten Commandments tablet he had carved himself behind his courtroom bench and began instituting prayer before jury selection.

Years later, Moore resurrected the Ten Commandments debate when he had a 5,200-lb. granite Ten Commandments monument commissioned and placed inside the Alabama State Judicial Building. Two lawsuits were filed, and by August 2003, a federal judge ordered the monument removed. Again, Moore refused, forcing his fellow justices to remove it instead and sparking thousands of protesters to rally in support of Moore outside the state judicial building. But they weren’t able to save his job. Later that year, a state judicial panel removed Moore from his post as chief justice.

And now, here he is again:

In a dramatic show of defiance toward the federal judiciary, Chief Justice Roy S. Moore of the Alabama Supreme Court on Sunday night ordered the state’s probate judges not to issue marriage licenses to gay couples on Monday, the day same-sex marriages were expected to begin here.

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, the chief justice wrote in his order.

The order, coming just hours before the January decisions of United States District Court Judge Callie V. S. Granade were scheduled to take effect, was almost certainly going to thrust this state into legal turmoil. It was not immediately clear how the state’s 68 probate judges, who, like Chief Justice Moore, are popularly elected, would respond to the order.

But, no.  He was thwarted:

Gay couples got married in Alabama on Monday despite a last-minute push from the state’s chief justice to stop them.

The U.S. Supreme Court declined to block a federal court order from January requiring the state to issue marriage licenses to gay couples. In Birmingham, cheers and applause went up at the probate court as licenses were issued.

“We have large crowds generally on Valentine’s Day here,” Judge Alan King of Jefferson County Probate Court told NBC News by phone. “This is by far the largest crowd that I’ve seen. It’s a very happy occasion.”

Moore is not willing to give up the fight:

Moore, in a telephone interview with NBC News, insisted on Monday that the federal courts had gone too far, and had no power to order state probate judges to do anything.

“A lot of states in this union have caved to such unlawful authority, and this is not one,” he said. “This is Alabama. We don’t give up the recognition that law has bounds.”

“Once you start redefining marriage, that’s the ultimate power,” he added. “Would it overturn the laws of incest? Bigamy? Polygamy? How far do they go?”

The thing is, Judge, the federal court governing your state has addressed this “redefining marriage” argument and how bogus it is.  MANY courts have.  You lost.  You are a loser.  Get over it.

Moore, by the way, has no jurisdiction.  He’s not the judge of any case involving same-sex marriage.  Even as the Chief Judge of Alabama state courts, he simply cannot intervene in contravention of a federal court ruling.

Alabama has done this before, by the way….

3112102.0

Oregon Bakers Fined As Much As $150,000 For Discrimination

Aaron and Melissa Klein, co-owners of Sweet Cakes by Melissa, refused to sell a wedding cake to Rachel Cryer and Laurel Bowman (now Bowman-Cryer) because they were a same-sex couple in January 2013. The Kleins became martyrs for conservative opponents of LGBT equality, claiming that they were being persecuted for their beliefs — both because of the complaint the couple filed with the state and the public backlash they faced. The backlash led them to close their storefront and operate their bakery out of their home.

The Kleins have insisted on social media that they do not hate gay people, putting this Rick Warren quote on Facebook:

“Our culture has accepted 2 huge lies. The first is that if you disagree with someone’s lifestyle, you must fear or hate them. Second is that to love someone means that you must agree with everything they believe or do. Both are nonsense. You don’t have to compromise convictions to be compassionate.”

They insist that they were simply living in accordance with their religious beliefs when they rejected a lesbian couple’s request for a wedding cake. Furthermore, they said they believed their decision to deny service to the two women was protected by their right to practice their religion as they see fit.

I get tired of these arguments, and all you have to do is replace “gay” with “inter-racial” and the whole thing crumbles.  Just as the owner of a lunch counter cannot discriminate on the basis of race, a business owner should not be able to discriminate on the basis of sexual orientation.  And religion should not provide a safe shelter for bigotry.

The Oregon Bureau of Labor and Industries (BOLI) announced yesterday that the owners of Sweet Cakes by Melissa violated a state nondiscrimination ordinance when they refused to sell a wedding cake to the lesbian couple. They may have to pay the couple as much as $150,000, though damages will be determined at a future hearing.

The legalese in this decision is important.  The main argument the Kleins put forth was that compliance with the state nondiscrimination law constituted “compelled speech.” BOLI rejected that argument saying, “[The Kleins] were not asked to issue a marriage license, perform a wedding ceremony, or in any way legally recognize Complainants’ planned same-sex wedding.” The Kleins were “under no compulsion to publicly ‘speak the government’s message’ in an affirmative manner that demonstrates their support for same-sex marriage.” The event would be private, not public, and regardless of whether making a wedding cake may be expressive, “the operation of Respondents’ bakery, including Respondents’ decision not to offer services to a protected class of persons, is not.”

In other words, even if baking a cake IS “speech”, you still cannot discriminate.

The Kleins next legal argument was also grounded in the First Amendment: they claimed that being forced to produce a wedding cake was a violation of their religious beliefs. In analyzing law that might support such a claim, BOLI arrived at an important distinction based on the Kleins’ own testimony: “Their refusal to make a wedding cake… was not a religious practice, but conduct motivated by their religious beliefs.” This is important because, unlike the conduct link for sexual orientation, other jurisprudence has established that religious freedom does not relieve individuals of complying with a a law that is “neutral” in applicability irrespective of religion, like nondiscrimination protections.

In other words, if making cakes was an actual religious practice, then they might have a religious exemption.

Here’s the decision:

 

Add Florida To The List

A few minutes ago, Florida became the… I’ve lost count… state to recognize gay marriage.

Check out this infographic (which doesn’t reflect the change in Florida):

Same sex marriage

That’s pretty amazing.  Only the South and parts of the midwest remain holdouts.

UPDATE:  Some backlash

Generally, when a couple heads to their local courthouse or county clerk’s office, they can both receive a marriage license and have their marriage officiated. That is no longer true in 14 Florida counties that have changed their policies anticipating the arrival of marriage equality this week.

Clerks in those counties have offered various justifications to the Tampa Bay Times for ending their courthouse wedding services, including cramped offices, staff limitations, and shrinking budgets. Others admitted that same-sex marriage was a contributing factor.

Pasco County Clerk of Court Paula O’Neil said that most of her staff were “uncomfortable” officiating same-sex weddings, and ending the practice was the only way to avoid discriminating or transferring them all to different departments. Okaloosa County Clerk J.D. Peacock II told his staff in a memo, “I do not want to have members of our team put in a situation which presents a conflict between their personal religious beliefs and the implementation of a contentious societal philosophy change.”

As Joe Jervis points out, almost all of the counties that have ended the practice are in the traditionally more-conservative panhandle region of Florida. Couples of any gender seeking to wed in those counties will have to find another officiant willing and able to marry them. It’s unclear what they’ll be expected to do if they can’t find an alternative.

Marriage Equality Setback Might Mean Fast Track To Supreme Court

On Thursday afternoon, the United States Court of Appeals for the Sixth Circuit just became the first federal appeals court in the country to side with marriage discrimination. Although the immediate effect of this court’s 2-1 decision is that marriage equality will not quickly become the law in Michigan, Ohio, Kentucky and Tennessee, the most important consequence of the Sixth Circuit’s holding is that there is now a “circuit split” on the question of whether same-sex couples must be allowed to marry under the Constitution. A circuit split, which occurs when two or more federal appeals courts disagree on the same question of law, is one of the most common reasons that the Supreme Court agrees to hear a case. Thus, the Sixth Circuit’s decision on Thursday all but guarantees that the justices will decide whether the Constitution’s promise of equality extends to gay people in all 50 states.

To date, the Fourth, Seventh, Ninth and Tenth Circuits have all sided with equality, along with nearly every single federal trial judge to consider the question after the Supreme Court struck down the anti-gay Defense of Marriage Act in 2013. Moreover, the Supreme Court has stood aside and allowed the federal appeals court decisions supporting marriage equality to take effect. The momentum is clearly against discrimination, and Judge Jeffrey Sutton’s opinion for the Sixth Circuit shows a keen awareness of this fact. His decision reads like the Custer’s Last Stand of judicial opinions. In it, he tries to anticipate every single legal argument that can be raised in support of marriage equality, and then he attempts to bat it down.

To the justices who concern themselves with how the Constitution was understood at the time it was written, Sutton warns that “[n]obody in this case . . argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” To those who worry about the legacy of anti-gay animus in the United States, he claims that bans on marriage equality “codified a long-existing, widely held social norm already reflected in state law.” To those that fixate on tradition, Sutton writes that “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.”

According to longstanding Supreme Court precedent, however, groups that have historically been subject to discrimination that has little basis in their ability to “perform or contribute to society” enjoy heightened protection against discrimination under the Constitution. Sutton concedes the legacy of discrimination against gay people, yet he discounts its relevance to this case. His explanation for why is worth quoting at length:

We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, “American laws targeting same-sex couples did not develop until the last third of the 20th century.” This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation. The usual leap from history of discrimination to intensification of judicial review does not work.

Sutton is probably correct that marriage discrimination did not emerge in the same way that Jim Crow laws did. Jim Crow was part of a conscious and comprehensive effort to reduce African Americans to second-class citizenship. Laws excluding same-sex couples from the blessings of marriage, by contrast, were not always enacted with such conscious intent. But even if Sutton is correct that marriage discrimination was not enacted with the same conscious intent as Jim Crow, it is hard to see why that justifies weakening the Constitution’s promise of equality. Why does anti-gay bias become less harmful or less invidious because it was, until recently, so tightly woven into American culture that it would never have occurred to generations of Americans to extend equal rights to gay couples?

Discrimination, moreover, is does not become constitutional simply because it was enacted for relatively benign, or even benevolent, purposes. Many of the early cases challenging gender discrimination, for example, targeted laws that were intended to protect women or even place them on a chivalric pedestal. Craig v. Boren, which is arguably the Supreme Court’s most important gender discrimination case, struck down a law that discriminated against men. It is difficult to argue that the Oklahoma lawmakers who enacted that law did so because they were biased against males — especially because the law was enacted at a time when it was difficult for women to be elected to public office.

In any event, Sutton’s opinion is likely to be reversed by the Supreme Court. It is very unlikely that the justices would have allowed other court decisions siding with marriage equality to take effect unless they believed that there are five votes on the Court to extend marriage equality throughout the land.

Breaking A 20-Court Victory Streak, A Federal Judge In Louisiana Upholds Gay Marriage Ban

Well, you can't win them all.

The Honorable Marty Fledman (yes, that's his name) — a Reagan appointtee — wrote today:

Many states have democratically chosen to
recognize same-sex marriage. But until recent years, it had no
place at all in this nation's history and tradition. Public
attitude might be becoming more diverse, but any right to same-sex
marriage is not yet so entrenched as to be fundamental. See
Malagon, 462 F.3d at 505. There is simply no fundamental right,
historically or traditionally, to same-sex marriage.

The problem with that, of course, is not the "right to same-sex marriage", but the "right to marriage" for same-sex couples.  He deliberately hcnages the focus of the inquiry.  

I mean, one could say the same thing about interracial marriage, too.  There is no "fundamental right to interracial marriage", but that wasn't the issue 50 years ago in the Loving case.  In Loving, the issue was whether the right to marriage (which is a fundamental right) applies to interracial couples.

Then, Feldman engaged the problematic (and in this case, silly) slippery slope:

When a federal court is
obliged to confront a constitutional struggle over what is
marriage, a singularly pivotal issue, the consequence of outcomes,
intended or otherwise, seems an equally compelling part of the
equation. It seems unjust to ignore. And so, inconvenient
questions persist. For example, must the states permit or
recognize a marriage between an aunt and niece? Aunt and nephew?
Brother/brother? Father and child? May minors marry? Must
marriage be limited to only two people? What about a transgender
spouse? Is such a union same-gender or male-female? All such
unions would undeniably be equally committed to love and caring for
one another, just like the plaintiffs.

Plaintiffs' counsel was unable to answer such kinds of
questions; the only hesitant response given was that such unions
would result in "significant societal harms" that the states could
indeed regulate. But not same-gender unions. This Court is
powerless to be indifferent to the unknown and possibly imprudent
consequences of such a decision. A decision for which there
remains the arena of democratic debate. Free and open and probing
debate. Indeed, fractious debate.

I think we can say that incestuous relationships would not become consititutional as a result of lifting the ban on gay marriages, if only because incest is against the law and the state as a compelling interest in regulating what are often abusive and non-consensual relationships.

But, you know, the judge played the "parade of horribles" hand.

A few years ago, Feldman made the news when he blocked Obama's moratorium on deep-wll drilling following the BP oil spill.  Part of the reason his decision made national news was because Feldman himself held significant financial interests in oil companies when he issued his opinion.

He's also on the FIAS court, which is why your phones are being tapped.

Fourth Circuit Overturns Virginia Same-Sex Marriage Ban

The religious right continues losing their reactionary culture war, as a federal appeals court strikes down Virginia’s ban on marriage equality.

And this ruling will also affect conservative bans on same-sex marriage in West Virginia, North Carolina and South Carolina, so it’s a significant defeat for the forces of atavism.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” the divided three-judge panel of the 4th U.S. Circuit in Richmond concluded.

[…]

The 4th Circuit opinion also will affect marriage laws in other states within its jurisdiction, including West Virginia, North Carolina and South Carolina. Only Maryland has legalized same-sex marriage.

Here in North Carolina, there are three cases which challenge the same-sex marriage ban.  In one of them, one of the plainitiffs is medically ill, and the ACLU has asked for expedited relief.  I expect the judge in that case will, in light of the Fourth Circuit decision, strike down NC's ban as well.

That might not mean gay marriage is coming to North Carolina.  More likely, it will be put "n hold" pending an inevitable Supreme Court decision.

We’re Back

Lots of things I wanted to write yesterday, but Typepad got dinged by another denial-of-service attack.  Pretty frustrating for them, but more so for me.  This is happening too often.

So now it all seems like old news — Oregon flipping on same-sex marriage, for example.

One story I was following — because it takes place in New Hampshire and I'm from New Hampshire — was this really awful racist police commissioner:

A police commissioner in a predominantly white New Hampshire town says he won't apologize for calling President Barack Obama the N-word, and he sat with his arms crossed while angry residents at a meeting called for his resignation on Thursday.

Wolfeboro Police Commissioner Robert Copeland, who's 82 and white, has acknowledged in an email to his fellow police commissioners he used the racial slur in describing Obama.

Town resident Jane O'Toole, who moved to Wolfeboro four months ago, said she overheard Copeland say the slur at a restaurant in March and wrote to the town manager about it. Copeland, in an email to her, acknowledged using the slur in referring to the president and said he will not apologize.

"I believe I did use the 'N' word in reference to the current occupant of the Whitehouse," Copeland said in the email to his fellow police commissioners, part of which he forwarded to O'Toole. "For this, I do not apologize — he meets and exceeds my criteria for such."

Copeland, who has declined to be interviewed, is one of three members of the police commission, which hires, fires and disciplines officers and sets their salaries. He ran unopposed for re-election and secured another three-year term on March 11.

About 20 black people live in Wolfeboro, a town of 6,300 residents in the scenic Lakes Region, in the central part of New Hampshire, a state that's 94 percent white and 1 percent black. None of the town police department's 12 full-time officers is black or a member of another minority.

He reportedly resigned yesterday, unapologetic to the end.

My, my.  It's good to know that "things have changed dramatically" since 50 years ago.

Arkansas Oh So Close

The Arkansas Supreme Court has denied a request for an emergency stay of Judge Chris Piazza's order overturning the ban on same-sex marriage. The court also dismissed as premature an appeal of Piazza's ruling because it wasn't a final order.

Here's the opinion. 

Marriage equality remains the law of the land in Arkansas, but the court injected a wrinkle that will give counties cover to continue to refuse marriage licenses to same-sex couples. And that wrinkle has prompted Pulaski Clerk Larry Crane to say that, for the time being, his office likely will cease issuing licenses to same-sex couples.

The court noted that Piazza's ruling didn't mention a statute that prohibits clerks from issuing marriage licenses to same sex couples. It remains in effect. Action will now shift to Piazza's court to pursue final orders, injunctive relief and a cleanup on the omitted statute.

Said Jack Wagoner, attorney for the plaintffs: 

We'll fix that tomorrow and be back here again…. How can you  find something unconstitutional but not affect a statute that would require the clerks to do something unconstitutional?  

Justices Donald Corbin and Paul Danielson issued a separate concurrence that said they simply would have dismissed the appeal for lack of a final order and rejected the emergency stay request because the case is still before the trial court.

And I've completely lost count how many states accept gay marriage.  It's really amazing when you think about the trend over the last 5 years.

And Idaho

Another domino falls

A federal judge has ruled that Idaho's ban on same-sex marriage is unconstitutional.

The ruling, handed down by U.S. Magistrate Judge Candy Dale on Tuesday, followed oral arguments on May 5.

Earlier Tuesday, Idaho Gov. Butch Otter (R) filed a preemptive motion asking for an immediate stay if Dale did rule against the gay marriage ban.

Not Dead

Yes, I haven't posted in a loooooong time, and it's very frustrating because some interesting stuff has been going down (the excuse is work — I'm covering for a sick co-worker and it has been time-consuming).

The MOST interesting story, as far as I am concerned, came from Arizona and SB1062, the "religious freedom" pro-bigotry bill which would permit businesses to discriminate against homosexuals for "religious" reasons.  Issues of religious freedom have been cropping up lately everywhere — see, for example, the debate about Catholic hospitals not providing insurance which includes birth control — but SB 1062 was a fantastic example of the rubber meeting the road.  It was brazen in its attempt to codify discrimination — bigotry, to be exact — in the name of religious freedom.

Arizona governnor Jan Brewer last night vetoed the bill.  Sadly, she didn't do it because it was morally repugnant.  She did it because of pressures from the business community.  The NFL was considering moving the Supre Bowl from Arizona.  Major League Baseball weighed in.  As did Intel and other large corporations.  Even companies that didn't reside in Arizona threatened to move their corporate get-away conventions from that state.  Suddenly, when it came to massive loss of business revenue, "religious freedom" didn't seem so important.

And Arizona's reputation had been further damaged.

Sadly, this is not over.  Georgia is looking to pass the same law.

Fools.

 

Virginia Upheaval on Gay Marriage Issue

Virginia, like many southern and midwest states, had passed a ban on same-sex marriage.  As in most states that have passed such a ban, there are legal challenges.  As we know in Oklahoma, a challenge to the ban recently succeeded, and a judge ruled that a ban on same-sex marriage is unconstititional (of course, that decision is being appealed).

But something interesting happened in Virginia today.  The Attorney General of Virginia weighed in, and submitted a brief stating that Virginia's own law — the statute banning gay marriage — is unconstitutional:

 Following a seismic political shift in Virginia, the new attorney general has concluded that the state's ban on gay marriage is unconstitutional, and on Thursday he joined a lawsuit challenging it.

Attorney General Mark R. Herring says in a brief filed in federal court in Norfolk that marriage is a fundamental right and the ban is discriminatory.

Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, is siding with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said in an email to The Associated Press.

"After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia's current ban is in violation of the U.S. constitution and he will not defend it," spokesman Michael Kelly wrote.

Herring is a Democrat who campaigned in part on marriage equality. The state's shift comes on the heels of court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma.

Yes, Virginia — elections have consxequences.

Pull Up A Chair, NOM. I Have Some News.

From an email from the National Organization for Marriage:

How many generations of children will be sacrificed to the gods of the gay lobby who demand the redefinition of marriage as an idol to their political movement? How long will children be told that men and women are not unique, that children don't need a mom and a dad, and that there's no special connection between marriage and child birth and rearing — it's just a sperm and egg that can be carried by anyone; any two people will do. Oh, and there's no need to limit parentage to just two people. If adults want to form a plural relationship and obtain rights to a child, who's to say they shouldn't if that makes them happy.

Ok.  Let's unpack that.

How many generations of children will be sacrificed to the gods of the gay lobby who demand the redefinition of marriage as an idol to their political movement? 

I'm not sure what that really means.  For example, I don't know what a "gay lobby" looks like (and least in a non-theater sense).  But I know what other words mean, and the answer to this question is zero.  Zero generations of children will be sacrificed to…. well, to anything.

How long will children be told that men and women are not unique…

Well, they have distinguishing qualities, but that just because they are different doesn't mean they both can't be parents.

…that children don't need a mom and a dad…

Yyeaah.  This is the part that got my attention.  Guess what, NOM?  Children don't need a mom and a dad.  How do we know this?  There are millions of children who don't have one or the other.  It's not only that way now; it's been that way throughout history.  I was one of those children.  So was our president.

…and that there's no special connection between marriage and child birth and rearing…

Well, there IS a connection between marriage and childbirth.  There's also a connection between marriage and cohabitation.  But it is not a necessary connection.

it's just a sperm and egg that can be carried by anyone; any two people will do.

Well, no.  See, here's where you mess up.  You think that respective owners of the sperm and the egg are necessarily the best parents by virtue of being the owners of the sperm and the egg.  But the sperm itself does not exude parental skills on its owner.  Neither does the egg.  There's simply no connection.  Put another way, a biological mother and biological father can be terrible parents to their biological offspring.  

I'm not saying "any two people will do".  I'm saying that, while the male and female biological parents usually have a vested interest in being good parents to their generated offspring, it's not a biological rule that they MUST be.  And the world is full of excellent adoptive parents (some oppo-sex, some same sex) which disproves the whole "sperm and egg" theory.

Oh, and there's no need to limit parentage to just two people. If adults want to form a plural relationship and obtain rights to a child, who's to say they shouldn't if that makes them happy.

I'm not sure how your mind works, but it is pretty creepy. "Rights to a child"?  Who is talking about children like they are chattel?

I don't think that's anyone's position.  I think the concern is what is best for the child.  And while study after study shows that two parents are better than one (all other things being equal), study after study shows that the sexual orientation of the parents does not cause any deteriment to the health and well-being of the child, physically or emotionally.  

NOM's fanciful example isn't an issue.  I'm not even sure what it means.

These people are dinosaurs.

This Will Really Get The Republican IRS Haters Pissed

But so what?

WASHINGTON — The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

The ruling implements federal tax aspects of the June 26th Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.

“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” said Secretary Jacob J. Lew. “This ruling also assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change.”

Under the ruling, same sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.

 

Ex-Gay Event In D.C. A Huge Disaster

From Right-Wing Watch:

Yesterday, American Family Radio’s Sandy Rios spoke to Ex-Gay Pride Month organizer Christopher Doyle about today’s ex-gay lobby day on Capitol Hill. Doyle, who was organizing the since-canceled Ex-Gay Pride banquet at the Family Research Council, complained in an interview with the Christian Post that “un-American” LGBT rights advocates have “shut us out,” explaining that “because of all this homo-fascism and indoctrination in the media, ex-gays aren’t given a fair shake.”

Rios confidently predicted that “thousands of ex-gays are descending” on Washington for a press conference planned for today at the Supreme Court. She lamented that when she led Concerned Women for America the media refused to hear “our ex-gay friends” because it “undermined the whole effort of the homosexual lobby.”

Here's what "thousands of ex-gays" look like:

Fewer-than-ten

That's the media on the left.  And fewer than ten ex-gays on the right.

DOMA and Prop 8 Decisions

Pretty much like I predicted: DOMA overturned, and Prop 8 booted because plaintiffs lacked standing.

What happens next: Since the Court ruled that the federal government cannot discriminate against same-sex marriages under the Equal Protection Clause, all the remains is for that same reasoning to be applied to the states.  After all, states cannot violate the federal constitution either.  So some new case must work its way up through the courts.  It will probably be a case where someone was married in, say, Massachusetts, and then moved to, say, North Carolina, and was denied some state benefit relating to marriage.

Or it could simply be a case where a gay couple tried to get married in a state not recognizing gay marriage, and they are denied.  They sue the state saying it violates the Equal Protection Clause.

Either way, this is the beginning of the end.

DOMA and Prop 8: A Prediction

This week — probably Thursday — the Supreme Court of the United States (SCOTUS) will release its opinion on two cases dealing with same-sex marriage.

One case challenges the constitutionality of the Defense of Marriage Act (DOMA).  Section III of DOMA prevents the federal government from treating same-sex couples (those legally married under state law) as "married" for the purpose of federal law . For example, someone who is legally married to a person of the same sex cannot currently receive spousal Social Security benefits should his or her spouse die.  This is, according to DOMA opponents, unconstritutional discrimination.

The second case concerns Prop 8 in California.  Prop 8, as you recall, was a statewide referendum banning gay marriages in California, passed by the people of California.  The district court and the appeals court both held that Prop 8 violates both the U.S. and California Constitutions.  There was also the thorny issue that some same-sex couples in California had already become married in that state before Prop 8 passed.

Both cases, taken together, give the Supreme Court a chance to address gay marriage.  Months ago, I gave a summary of possible outcomes:

Taken together, I suspect there are five possible outcomes:

(1)  SCOTUS will kick the can down the road.  It is possible, though I suspect unlikely, that both cases will be disposed of on issues other than the merits.  For example, there is a standing issue in the Prop 8 case ("standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place).  Conceivably, the court could rule on that, and never reach the merits.  The DOMA case has a standing issue as well.

(2)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, and force the federal government to accept it only where states accept it.  

(3)  SCOTUS would allow each state to decide whether or not to allow same-sex marriages, but the federal government does not have to accept it.  Basically, a ruling like this would say that same-sex marriages are not protected by the U.S. Constitution, and the federal government can discriminate.  This is essentially what we have now.

(4)  SCOTUS finds that same-sex marriages are protected by the U.S. Constitution, and therefore ALL states must recognize same-sex marriages.  The best of all outcomes.

(5) SCOTUS finds that the U.S. Constitution (14th Amendment) bars states from allowing same-sex marriage.  The worst of all outcomes.

Now it is time to stick my neck out and make predictions, which will, most assuredly, be wrong.  So here I go…..

In 1954, with Brown v. Board of Education, the Supreme Court lay down a landmark decision that laid to rest, with all finality, the issue of segregated schools.  No way, the Court said, and there was no wiggle room.  Not just for Topeka, Kansas (where the case arose), but everywhere.  Nothing was left to the states but to implement integration, with "all due haste".

I don't see that happening with same-sex marriage… with this Court.  It tends to be timid about making the sweeping apply-to-all-states kind of decisions.  It is very sensitive to its unelected status, and will want to avoid making "activist" decisions, even though the Constitution might demand it (as it did in Brown).  So it will, if at all possible, try to make its ruling as narrow as possible.  Scratch #4 and #5 above.

The smart money says, and I agree, that DOMA will fall.  Most say 5-4; I say 6-3.  I think you get Justice Kennedy and maybe Chief Justice Roberts voting with the "liberals": Justices Ginsburg, Breyer, Sotomayor and Kagan.  

There's little question that DOMA discriminates: it treats opposite-sex couples differently than same-sex couples.  That's undeniable.

It should be pointed out to the lay reader that "discrimination" isn't, in constitutional parlance, necessarily a bad thing.  After all, every single law discriminates.  A law against child molestation discriminates against, well, child molesters.  

So the key question, or one of them anyway, is whether the discrimination affects a "suspect class" of people.  Without getting too deep in the weeds, a "suspect class" is any group (a) that has been the subject of invidious discrimination, hostility, in the past, (b) that possesses an immutible trait and (c) whose distinguishing characteristic does not prevent them from becoming meaningul members of society.  Groups based on race fall into a suspect class.  Presumably, so do homosexuals, although the Supremes have not specifically said so.

The counterargument regarding DOMA is this: it doesn't discriminate based on sexual orientation.  After all, where DOMA says that marriage is between "one man and one woman", it is indifferent to the sexual orientations of either.  That is what I call "the cute argument" ("Hey, gay men can still marry women, so where's the discriminiation?!?") and watch for Scalia to breathe life into that.

Anyway, once you've got the general sense of what level of discrimination we're talking about, then the court will ask, "Is there any rational basis for this discrimination?" or "What is the important objective that the government is trying to achieve that accounts for this discrimination?"  In other words, it will look at the government interest.

And that's where the DOMA case crumbles.  There simply is no federal government interest in discriminating between same-sex couples and opposite-sex couples.  You know who says so?  The federal government.  The Obama Administration.  They're not even there in the Supreme Court to defend DOMA.  (It is being defended by a handful of Republicans in Congress).

Okay.  So DOMA flies by the wayside.  What about Prop 8?

That's trickier.

But my prediction is that the Supreme Court will "punt" the issue down the road as much as it can.  To the extent that they make a decision at all, I feel that they will limit it to California, and not all the states… even if all the states have provisions similar to that in the California constitution.

There are several ways that SCOTUS can "punt" this.  For one, they can resolve the case on the standing issue, and never reach the merits of whether or not Prop 8 violates the state and federal constitution.  "Standing" means whether or not the plaintiffs had the right to bring the lawsuit in the first place.  Like the federal government in the DOMA case, the State of California is not showing up to defend the results of Prop 8.  Who is?  A conglomeration of right wing groups opposed to same-sex marriage.  That is unusual.

The lower courts found that the plaintiffs in Prop 8 had standing.  The Supreme Court might disagree.  But if it does, what happens?  Does Prop 8 get reinistated, because "the will of the people" said it should?  Maybe.

But I think what is more likely to happen is that SCOTUS will rule that the plaintiffs have standing.  Even then, however, they will still avoid the tough question, and decide in favor of defendants for one reason, and one reason alone — that it is unconstitutional to take away a "right" once it has been given.

Remember, there was a time when same-sex couples could get married in California.  This was before Prop 8.  Then Prop 8 came along and stripped that right away.

This narrowly drawn opinion will probably win 5-4.  Justice Kennedy, as always, is seriously in play.  Kennedy stands as the author of Lawrence v. Texas and Roemer v. Evans — two key Supreme Court decisions overturning state laws on sexual orientation. Lawrence invoked privacy protections to invalidate sodomy laws, while Roemer struck down a Colorado constitutional amendment that would have prohibited antidiscrimination laws protecting gays.  On the other hand, Kennedy is also likely to be reluctant to overturn a sizable majority of state laws in one blow.

Chief Justice Roberts, I believe, is also in play.  Just as he did when he voted in favor of Obamacare, he may want to side with the majority only so he can write a narrow narrow opinion.

But whether it is Roberts or Kennedy (or both), I predict the result will allow SCOTUS to allow same sex marriage in California, but not allow that precedent to spread to other states which clearly do not want same sex marriage.  In doing so, the court will avoid having to answer THE salient question: "Does banning same sex marriage violate the federal constitution?"

So, a victory for California, but not the country.  For the rest of the country, the battle returns to state legislatures.

This half-ruling will leave open many questions, most notably, issues regarding full faith and credit between the states.  For example, if a same sex couple legally marries in Massachusetts, and moves to North Carolina, can a state-run North Carolina hospital deny visitation rights to one half of the same-sex couple, even though the law says it must allow it for opposite-sex couples?

Those kind of questions will not be answered this week.  Again, as I say, the Court will kick it all down the road and only address those questions when it absolutely HAS to.

For those of you who read the transcripts of Prop 8 (or saw the play "8"), I don't think there will be much discussion about the facts that came from that case (or rather, the lack of facts showing that same-sex couples make terrible parents).  Scalia is most likely to throw this crap in there, and possibly even insert "evidence" that wasn't raised at trial.  Yes, he's just that bad a justice.

Rhode Island Joins The Future

And then there were 10.

Overcoming years of resistance, Rhode Island on Thursday became the 10th state in the country and the last in New England to approve same-sex marriage.

The measure passed a final vote in the legislature in the afternoon. Just before 7 p.m., Gov. Lincoln Chafee, an independent who had long advocated for its passage, signed it into law in a jubilant ceremony on the steps of the Statehouse in Providence, where hundreds of people, including many state and local officials, joined the celebration.

Retaliation Against Judges

Republican politicians have no scruples.

In 2009, the Iowa Supreme Court unanimously held that the Iowa Constitution does not permit marriage discrimination against gay couples. Four of the seven justices who reached that decision remain on the court today, and a pair of Iowa lawmakers have a plan to punish them four years after they extended the blessings of liberty to gay Iowans:

“It’s our responsibility to maintain the balance of power” between the three co-equal branches of government, Rep. Tom Shaw, R-Laurens, said Tuesday.

The justices “trashed the separation of powers” with their unanimous Varnum v. Brein decision and implementation of same-sex marriage without a change in state law banning any marriages expect between one man and one woman, added Rep. Dwayne Alons, R-Hull.

Their amendment to Senate File 442, the judicial branch budget bill, would lower the salaries of the four justices on the seven-member court who were part of the unanimous Varnum v. Brein decision to $25,000 – the same as a state legislator.

It’s difficult to view this bill as anything other than an effort to drive these justices off the bench. As of 2010, an associate justice of the Iowa Supreme Court earned $163,200, so this bill would cut their pay by nearly 85 percent. Iowa state legislators are not full-time, which explains why they receive such low salaries.

The GOP Split Is Starting To Get Real

Over the past few months, the GOP has talked a lot about re-branding, and softening its views on gay marriage and immigration, in order to appeal to normal people.

The base is not happy:

Tony Perkins says religious conservatives should stop donating to the Republican Party until it clarifies its position on social issues. 

The president of the Family Research Council, a top religious political group, said Thursday night that conservative activists should withhold their political donations to Republicans until the party decides where it will stand on social issues.

Tony Perkins, in an email sent to his supporters, criticized the Republican National Committee over a report released last month that suggested the party should reconsider its messaging on same-sex marriage to appeal to younger voters.

 

"Until the RNC and the other national Republican organizations grow a backbone and start defending core principles, don’t send them a dime of your hard-earned money," Perkins said in the email, a copy of which was obtained by CNN. 

"If you want to invest in the political process, and I encourage you to do so, give directly to candidates who reflect your values and organizations you trust — like FRC Action."

Perkins says that the RNC proposal will only drive away young voters who do not support same-sex marriage.

"Instead of trying to appease millennials, Republicans should try educating them on why marriage matters," Perkins wrote. "There’s an entire group of 'Countercultural Warriors' full of compelling young leaders who are all going to the mat to protect marriage."

In a CBS News poll released late last month, 49 percent — a plurality — of Republicans under 30 years old say they support same-sex marriage, while 46 percent who do not believe gay couples should be allowed to wed. Overall, 73 percent of Americans under 30 back gay marriage.

Still, Perkins says Republicans must "pass a resolution reiterating the GOP’s support for the party platform that was overwhelmingly adopted in Tampa last year."

That platform included provisions saying the party would oppose same-sex marriage. Members of the Republican National Committee were meeting Friday in California, and are expected to take up a resolution reaffirming that position.

Steve Benen is right.  Social conservatives are over-reacting:

Why, exactly, do social conservatives feel so aggrieved? On a purely superficial level, the party does not want to be perceived as right-wing culture warriors because Priebus and Co. realize that this further alienates younger, more tolerant voters. But below the surface, Republicans, especially at the state level, are banning abortion and targeting reproductive rights at a breathtaking clip, pursuing official state religions, eliminating sex-ed, going after Planned Parenthood, and restricting contraception. Heck, we even have a state A.G. and gubernatorial candidate fighting to protect an anti-sodomy law.

What's more, folks like Pribus are condemning Planned Parenthood and "infanticide," while Paul Ryan is speaking to right-wing groups about a future in which abortion rights are "outlawed."

And social conservatives are outraged that Republicans haven't pushed the culture warenough? Why, because the RNC hasn't officially declared its support for a theocracy yet?

Religious right activists, I hate to break it to you, but Republican policymakers are already doing your bidding. You're not the ones who should be whining.

Over-reacting? Whining?  That's what the Tea Party types do.

Ross Douhat’s Desparate Editorial

What's remarkable about Ross Douhat's New York Times editorial against gay marriage is that it is devoid of any compelling fact.  First, he cites the decay in marriage — i.e., less people are getting married and divorces are up.  Then, he admits that correlation isn't causation, i.e., he admits that the decay in marriage probably has more to do with the economy than the rise of gay marriages.  Then, in a fit of desparation, he begs liberals, now clearly on the road to victory, to concede his argument that gay marriage ruins the institution of marriage:

A more honest, less triumphalist case for gay marriage would be willing to concede that, yes, there might be some social costs to redefining marriage. It would simply argue that those costs are too diffuse and hard to quantify to outweigh the immediate benefits of recognizing gay couples’ love and commitment.

Such honesty would make social liberals more magnanimous in what looks increasingly like victory, and less likely to hound and harass religious institutions that still want to elevate and defend the older marital ideal.

Um…. no, Rick.  There really aren't any social costs to "redefining marriage" other than an increasingly thin minority of people think it is icky.  If there were social costs, you would have named one actually attributable to gay marriage.

Idiot Quote Of The Day

From Georgia GOP Chairwoman:

“You may be as straight as an arrow, and you may have a friend that is as straight as an arrow… Say you had a great job with the government where you had this wonderful health plan. I mean, what would prohibit you from saying that you’re gay, and y’all get married and still live as separate, but you get all the benefits? I just see so much abuse in this it’s unreal. I believe a husband and a wife should be a man and a woman, the benefits should be for a man and a woman. There is no way that this is about equality. To me, it’s all about a free ride.” 

Straight men will marry straight men in order to get marriage benefits?  I don't think so (and if they were interested in defrauding employers, they would still enter a sham marriage with a woman).

Honestly, do these bigots think before they open their mouth? 

The World’s Worst Columnist Strikes Again

Nobody can makes sense of Megan McArdle’s latest screed, mostly because it contains gems like this:

In some sense, the sexual revolution is over . . . and the forces of bourgeois repression have won.

That’s right, I said it: this is a landmark victory for the forces of staid, bourgeois sexual morality.  Once gays can marry, they’ll be expected to marry.  And to buy sensible, boring cars that are good for car seats.  I believe we’re witnessing the high water mark for “People should be able to do whatever they want, and it’s none of my business.”  You thought the fifties were conformist?  Wait until all those fabulous “confirmed bachelors” and maiden schoolteachers are expected to ditch their cute little one-bedrooms and join the rest of America in whining about crab grass, HOA restrictions, and the outrageous fees that schools want to charge for overnight soccer trips.

I’m not sure if she’s lamenting the death of the sexual revolution or celebrating it, but she seems to be saying that once gays start getting married, the sexual prudes win, because that means gays will be just like everybody else and no longer have hot sex in hot tubs.

Or something.

Try to make sense of this next paragraph:

I know, it feels like we’re riding an exciting wave away from the moral dark ages and into the bright, judgement free future.  But moral history is not a long road down which we’re all marching; it’s more like a track.  Maybe you change lanes a bit, but you generally end up back where you started.  Sometimes you’re on the licentious, “anything goes” portion near the bleachers, and sometimes you’re on the straight-and-narrow prudish bit in front of the press box.  Most of the time you’re in between.  But you’re still going in circles.  Victorian morality was an overreaction to the rather freewheeling period which proceeded it, which was itself an overreaction to Oliver Cromwell’s puritanism.  (Cromwell actually did declare a War on Christmas, which he deemed to be sensuous paganism.)

It has something to do with attending a sporting event, which is, depending on where you sit, a lot like Oliver Cromwell.

Or not.

Let’s scan down further:

When traditional marriage, with its expectations of monogamy and longevity, no longer means excluding gays, expect it to get more popular among affluent urbanites.

To be sure, it’s already popular–affluent urbanites are now quite conservative in their personal marital habits.  They’ve just been reluctant to shame those who don’t follow suit.  But with marriage freed from the culture-war baggage, we now have an opening for change.  Think it can’t happen?  Consider the cigarette. It was shocking for a woman to smoke on in public in 1880, nearly mandatory in 1940, and increasingly shocking in 2013 (for either gender).  I wouldn’t be surprised to see out-of-wedlock childbearing follow a similar course. 

What she is trying to say is that affluent urbanites will get married before having children, because women used to smoke very little, then they used to smoke a lot, and now they hardly smoke at all.
Well, it goes on like this… and then you come to the “Most Liked” comment to her editorial:
A pointless article.  Meandering subject, no structure, conclusion does not match either the title or the article.  Megan, what are you suggesting?  Nothing you put here says that sexual freedom will go away.  You also seem to say it’s bad, but then bemoan unmarried parents.  If I were your English teacher, this would not get a passing grade.

Yup.