It’s Over — Josh Marshall thinks the fight against marriage equality is over.
Since the Supreme Court ruling in June, the writing has been on the wall for banning of marriage rights for gay and lesbian couples in the United States. Since June the number of states with marriage equality has jumped from 12 to 18. But last week’s lower court decisions in Utah and Ohio leave little doubt that the political fight over gay marriage is now essentially over and that gay marriage will be the law of the land in every state in the country in the pretty near future.
The fact that gay and lesbian couples are now lining up to get married in Utah of all places – arguably the most conservative state in the country – might tell you this on a symbolic level. But the logic that points to the end of the political fight over gay marriage is more concrete, specific and undeniable.
Utah, rightly, got the most attention. But there were two cases last week. The other one in Ohio dealt with a much narrower question: whether the state had to recognize gay marriages in the issuance of death certificates. But both cases rested on the same essential premise: that if the federal government can’t discriminate against gay couples, states – by definition – cannot either.
As Judge Timothy Black put it in the Ohio case: “The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no.”
Both judges, perhaps with an element of trolling or humor, cited Justice Scalia’s furious dissent in United States v Windsor, in which he claimed that the Court’s decision to overturn DOMA would lead logically and inevitably to overturning every state gay marriage ban in the country.
Now, this might all be written off as the work of two federal trial judges. But the tell is in the response of the 10th Circuit, one of the country’s more conservative. When Utah appealed to the 10th Circuit to block further gay marriages until its appeal could be heard on the merits, the judges said no. Because the two standards for such a denial are ‘irreparable harm’ and likelihood to prevail on appeal, the appellate judges – one Bush appointee, one Obama appointee – seemed to be hinting that Utah is likelihood to lose.
In other words, the inexorable Scalia logic appears clear to them too.
In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.
I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don’t want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it’s all but certain it’s still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.
Out For A Cruz — Dave Weigel in Democracy looks at the Tea Party’s plan to make Ted Cruz the 2016 nominee of the GOP.
It was in Iowa last summer, two-and-a-half years before the 2016 presidential caucuses, that conservatives first pitched me on President Ted Cruz. The first-term Texas senator was in the state to rally for the defunding of the Affordable Care Act. His venue was the annual gathering of the FAMiLY Leader, a social conservative coalition; its president, Bob Vander Plaats, happened to endorse the winners in the last two Iowa caucuses, Mike Huckabee and Rick Santorum. The enthusiasm for a Cruz run filled the room like the sound from a Marshall stack.
“Before, there was never a mixture of the limited-government, fire-breathing prophet with a Christian conservative, moral-based guy,” said Jamie Johnson, a Republican Party activist who’d backed Santorum in 2012. “When the conservative base of the Republican Party has a David, to use a biblical analogy—when they have their David, it’s obvious who their David is—it doesn’t matter where the money is. Ted Cruz is the only guy who fits that bill.”
Johnson’s comment stuck with me because I heard so many versions of it, from so many Iowans. The conservative base of the Republican Party takes no responsibility for the party’s 2012 defeat. It takes no responsibility for the 2008 loss, either. In its telling, the base was too slow to pick its champion. Its vote was split, coalescing too late behind one candidate—Huckabee in 2008, Santorum in 2012. So the Republican establishment force-fed it two “electable” candidates named John McCain and Mitt Romney. This is the ur-myth of the modern GOP; it will scare the base into organizing more adeptly than it’s ever done before. Since the rise of party primaries and binding caucuses, only twice—1964 and 1980—has the conservative base overcome the party “establishment.” Ronald Reagan was a two-time loser (he ran briefly in 1968 in addition to 1976) before he won; and when Barry Goldwater triumphed, only 16 states held true primaries. There’s no precedent for a true conservative insurgent taking the nomination in the modern age of drawn-out, expensive ballot contests.
But there are cracks in the dam. Mitt Romney, a runner-up in the 2008 contest, faced an incredibly weak 2012 field. That didn’t stop him from becoming the first Republican to lose the South Carolina primary on the way to nomination, losing “conservative” voters—two-thirds of that state’s electorate—by 21 points. It didn’t stop him from having to fight a month-long mop-up operation against Santorum, who won more states than Romney in the South and nearly won in the Midwest, where he was outspent nearly 5-to-1, even before PAC money was counted. The weakest insurgent candidate in memory actually won 11 state contests, four more than John McCain won in his still-celebrated 2000 run against George W. Bush.
So, how does the Tea Party win the nomination? It copies, as best it can, the model Indiana conservatives used in 2012. Burned by 2010, when a messy Senate primary produced a moderate candidate, Indiana’s Tea Party organizations united under the banner of Hoosiers for A Conservative Senate. They cleared the boards for Richard Mourdock, who went on to obliterate Senator Richard Lugar in the primary (although he lost the general). In 2015 and 2016, the Tea Party would need to copy this as best it can in a rolling primary system, minimizing possible spoilers and locating a white knight. It might take until South Carolina or Florida, but if only one candidate is left by then—a Ted Cruz, a Rand Paul, a Scott Walker—he’d be in a stronger position than any insurgent since Ronald Reagan in 1976.
If It Quacks…. — Andy Borowitz satirizes the suspension of the Duck Dynasty dude.
WASHINGTON (The Borowitz Report)—Supreme Court Justice Antonin Scalia lashed out at the cable network A&E today, calling its decision to suspend Phil Robertson, the star of the TV series “Duck Dynasty,” unconstitutional, and demanding that it be overturned at once.
Speaking at a press conference with fellow Justice Clarence Thomas, a visibly angry Scalia told reporters that Robertson was “exercising his First Amendment right to express an opinion—an opinion, I might add, that many other great Americans agree with.”
He warned that the suspension of the “Duck” star would have a “chilling effect” on freedom of speech in America: “If Phil Robertson can be muzzled for expressing this perfectly legitimate view, what’s to prevent the same thing from happening to, say, a Justice of the Supreme Court?”
He added that, while he was a huge “Duck Dynasty” fan who never misses an episode, his objection to Mr. Robertson’s suspension was “purely on Constitutional grounds.”
Declaring that A&E’s decision “will not stand,” Justice Scalia said he would ask the Supreme Court to meet in an emergency session to overturn it: “This offensive decision by A&E is a clear violation of the Constitution, and I’m not the only one on the Court who feels that way. Right, Clarence?”
Justice Thomas had no comment.
Update: A&E has reinstated their star. Money talks.
Doonesbury — Dream of Fields.