Wednesday, November 18, 2015

Three Little Words

This is your occasional reminder that when you vote for a president, you’re also voting for the person who will select the next person to fill a vacancy on the Supreme Court.  And with people like this on the Court, it’s even more important to remember that.

“What minorities deserve protection?” he said rhetorically. “What? It’s up to me to identify deserving minorities?”

“What about pederasts?” he asked. “What about child abusers?”

“This is a deserving minority,” he went on, jokingly. “Nobody loves them.”

While I’d never wish harm to anyone, in the case of this little troll the vacancy can’t come soon enough.

Tuesday, June 30, 2015

Short Takes

The Supreme Court stays Texas abortion law.

The Supreme Court lets controversial lethal injection method stand.

Greece’s debt crisis freaked out the stock markets.

Some southern states are going along with marriage equality.

Someone else I don’t care about is no longer on TV.

The Tigers had the night off.

Monday, June 29, 2015

Roberts Rules: You’ll Never Be Equal

Chief Justice John Roberts’ dissent in Obergefell v. Hodges was, compared to the rants of Justices Thomas and Scalia, “measured,” but it still embraced a chilling view of the gay community, basically telling us “Okay, you can have your marriages and we’ll smile politely and indulge you, but you will never be equal to the straight world because you had to go to court to force us to accept you.  If you had just waited for us to come around, everything would have been fine.  But no, you had to go and spoil it all by making some of us rule in your favor.”

I find it disturbing that the Chief Justice would take such a petulant and patronizing tone.  Suppose he said the same about blacks wanting desegregated schools or women wanting to vote: Just wait, we’ll get to you.  That’s not how it works, Your Honor.  Injustice doesn’t go away by itself.

Footnote: There’s a remarkable bit of irony in one of Justice Roberts’ sentences: “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”  Funny, that’s what we said about Bush v. Gore.

Friday, June 26, 2015

Marriage Equality Wins

From SCOTUSblog:

Marriage Equality 06-26-15

NBC News:

The U.S. Supreme Court on Friday made marriage for same-sex couples legal nationwide, declaring that refusing to grant marriage licenses to gay and lesbian couples violates the Constitution.

The landmark ruling will produce the most significant change in laws governing matrimony since the court struck down state bans on inter-racial marriage almost 50 years ago.

The majority opinion in the 5-4 decision was written by Justice Anthony Kennedy.

“The constitution promises liberty to all within its reach,” Kennedy wrote.

At long last, I’m a full citizen of the United States.

Update: The final paragraph from Justice Antony Kennedy’s majority opinion:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

That’s all we wanted.


This Could Be The Day 3

Okay, we got Obamacare safely past the Moops invading Spain and Justice Scalia’s argle-bargle, and Fair Housing survived, too.  Today the Supreme Court will hand down more rulings, possibly the Big One on marriage equality.

Knowing what drama queens they can be be, they might hold off the climax until the last possible moment which is next Monday, making the afterglow that much sweeter.  But maybe they’ll announce the ruling today so we can celebrate over the weekend.

Yes, I’m confident that the Supreme Court will rule in favor of marriage equality.  They have already tipped their hand by allowing lower court rulings in marriage equality cases stand, and now 36 states and the District of Columbia allow it.  Those wedding bells cannot be unrung.

The only question will be by how much: 5-4, 6-3, perhaps even 7-2 with the firm dissents coming from Scalia and Thomas, neither of whom seem to have gotten over the fact that gay people are allowed to live and work among them.  I doubt that unlike Brown v. Board of Education, the Chief Justice is not working behind the scenes to make the decision unanimous.

In 1954, Chief Justice Earl Warren thought it was important for the Court to render a unanimous ruling on school segregation so that there would be no room for doubt about the Court’s intent.  Even though there were some justices who thought separate but equal was just fine, Justice Warren, who was first a politician — he had been the governor of California before Eisenhower appointed him — knew how to make the case and probably did some dealing to seal the decision 9-0.  He also was able to get the Court to rule unanimously in 1967 in Loving v. Virginia, the case that ended the bans on interracial marriage.

This time around, though, there will be dissent by the two or three because no matter how obvious it may be to the average person, there are those who believe that their infantile obsession with icky gay sex and the specious argument of religious liberty trumps the equal rights clause of the Constitution.

Let them weep and wail and tell us they will not “abide by” the ruling.  Fine, what are they going to do?  Stand outside the weddings and scream?  Not marry their secret f-buddy that they drop in on when they tell their wife they’re going to Home Depot?  They have no standing; they cannot stand in the metaphorical schoolhouse door.

If the ruling doesn’t come down today, we can wait until Monday.  It will be worth it.

Thursday, June 25, 2015

This Could Be The Day 2

Keep an eye on the Supreme Court at 10:00 a.m. ET for delivery of opinions on a number of cases, but foremost on the minds of most watchers are King v. Burwell (Obamacare) and Obergefell v. Hodges (marriage equality).

Those in the know say that we’ll probably get Obamacare either today or tomorrow and marriage equality on Monday.

We shall see.

Update: Obamacare is upheld.  Here’s the ruling.

Tuesday, June 23, 2015


It is somehow reassuring that all is not lost when you have a justice of the Supreme Court quote a comic book when rendering an opinion on the complexities of patent law.

”The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”

It will be the acme of nerdity when Antonin Scalia renders an opinion in his native language, Klingon. Qapla’!

Monday, June 22, 2015

This Could Be The Day

We’re getting near the end of June, which means the Supreme Court will be handing down the hot potato rulings.  They’ve already issued the easier ones — how hard was it to decide that a Confederate flag license plate was offensive? — so now we get to the tough cases such as marriage equality and subsidies for Obamacare.

To the outside observer, both cases should be easy calls: the Fourteenth Amendment and the basic idea of American democracy holds that all citizens are entitled to equal protection under the law and that includes what the Court determined nearly fifty years ago to be a “fundamental right:” that of letting people choose who to marry without state interference on the basis of innate qualities such as race.  As for the Obamacare subsidies, it’s clearly a question of nitpicking one sentence in a 2,000 page law that got by the proof-readers, and we will find out if indeed the Moops invaded Spain.

The Court has such a full load that they’re also handing down rulings on Thursdays, so we have today, Thursday, and a week from today to find out.  Stay tuned.

Update: No marriage or Obamacare ruling today.

Update II: The Court has now added this Friday as well.

Friday, June 19, 2015

Short Takes

Dylann Roof, the suspect in the Charleston shooting, has been extradited from North Carolina.

Haitians in the Dominican Republic face deportation.

F.C.C. says phone companies can ban robocalls.

Supreme Court upholds Texas ruling against Confederate license plate.

The Tigers and Reds were rained out.

Tuesday, June 9, 2015

Short Takes

At the G7 summit, President Obama pledged more help for fighting ISIS.

Gov. Andrew Cuomo of New York thinks the escaped prisoners from Dannemora had inside help.

Former South Carolina policeman indicted for murder for shooting an unarmed man in the back.

Texas policeman put on administrative leave for pulling his gun on teens at a pool party.

The Supreme Court rules that Congress cannot tell the State Department what to put on passports.

The Tigers had the night off.  They go up against the Cubs tonight.

Tuesday, June 2, 2015

Thursday, May 28, 2015

Annals of Minority Outreach Ctd.

As if the Republicans haven’t already done enough to turn away Hispanic voters — and shallowly tried to make up for it by pushing their cute little first-Communion kid out on stage in the person of Marco Rubio — now they’re hot on the trail of a case that will go before the Supreme Court next term that could fundamentally change the way voting districts are drawn.

This is based on the transparently xenophobic suit brought by conservatives from Texas who claim that districts should be created not on the number of people living in it but on the number of eligible voters.  No longer will it be one person, one vote, but one voter, one vote.

Adam Liptak at the New York Times sums it up.

The court has never resolved whether voting districts should have the same number of people, or the same number of eligible voters. Counting all people amplifies the voting power of places with large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

A ruling that districts must be based on equal numbers of voters would move political power away from cities, with their many immigrants and children, and toward older and more homogeneous rural areas.

It’s not enough that the GOP has already rigged the voter registration rules to favor their party by basically re-instituting Jim Crow-levels of requirements for registering voters; now they want to claim that the only people who should be represented are voters, as if they are the only people who live in a particular district and for whom the legislatures and Congress should work.  What’s next: only landowners can vote?

Paul Waldman at the Washington Post sees this as the next wave of GOP mainstreaming a fringe idea.

…before long, every Republican is going to decide that they firmly believe, as the most fundamental expression of their commitment to democracy and the vision of the Founding Fathers, that only eligible voters should count when tallying population to determine district lines.

One thing to watch out for as this plays out is the role of the conservative media. If I’m right, very soon you’re going to see Fox News hosts and radio talkers like Rush Limbaugh doing segments on this case, in effect instructing conservatives on what’s at stake and how they should think about the issue. That consistent drumbeat won’t only affect the conservative leaders and rank-and-file, it could even affect the Supreme Court justices, who will hear the arguments being made in the media in support of these plaintiffs. After a while, a legal theory that sounded absurd will begin to seem at the very least to be mainstream. In short order, there will be universal agreement on the right. And it could have a real impact on political power even if the plaintiffs lose.

Isn’t it ironic that in the 200-plus years that this country has been in existence that only until the former minorities — women, African-Americans, Hispanics, and other unwhite unChristians — start to gain both population and political power that the folks who believe in smaller government and more freedom suddenly discover that the rules have to be changed to maintain their rickety perch of power.

Wednesday, May 27, 2015

Short Takes

Iraqi forces will try to re-take Ramadi.

Texas, Oklahoma and the Plains can’t catch a weather break.

The Nebraska Senate will try to override the veto of the death penalty repeal.

Cleveland and the DOJ have reached a settlement on their policing.

One person/one vote will be tested in a case before the Supreme Court next fall.

The Tigers beat the A’s 1-0.

Tuesday, May 26, 2015

Supremely Stupid

Mike Huckabee, who will never be president of anything, continues to prove that he should never be allowed near any form of power other than the adapter on a Dust-Buster with this spewage of religious bile and historical ignorance.

Republican presidential candidate Mick Huckabee insisted on Sunday that the president of the United States would not have to follow a ruling that struck down bans on same-sex marriage because the Supreme Court was not the “Supreme Being.”

“You seemed to indicate that as president, you wouldn’t necessarily obey court rulings, even the Supreme Court,” Fox News host Chris Wallace pointed out during an interview on Sunday. “We have operated under the principle of judicial review since the Marbury v. Madison case in 1803.”

According to the GOP candidate, the United States would be operating under “judicial supremacy” instead of judicial review if bans on same-sex marriage were to be struck down.

“Presidents have understood that the Supreme Court cannot make a law, they cannot make it, the legislature has to make it, the executive branch has to sign it and enforce it,” Huckabee said. “And the notion that the Supreme Court comes up with the ruling and that automatically subjects the two other branches to following it defies everything there is about the three equal branches of government.”

“The Supreme Court is not the supreme branch,” he added. “And for God’s sake, it’s not the Supreme Being.”

Huckabee wondered what would happen if the Supreme Court ruled on “who was going to be the next president.”

“We would say, ‘Well, they can’t do that.’ Why can’t they do it? They can’t do it because it’s not in the law,” he opined. “We are sworn to uphold the Constitution and the law. And it has to be consistent and agreed upon with three branches of government. One can’t overrule the other two.”

Setting aside the fact that apparently Mr. Huckabee was not paying attention in Grade 6 Social Studies when most kids learn about the three branches of government system that we have and that one of the roles of the Judiciary is to review the laws and does have the power to invalidate them, chuckling over the cute little “Supreme Court v. Supreme Being” quip, the statement that gets my attention was his fear of what would happen if the Supreme Court ruled on “who was going to be the next president.”

Yes, indeed, what would happen?

Fortunately for the sake of the country and what’s left of the separation of church and state, the best that Mr. Huckabee can hope for is that Fox News will take him back.  If not, there’s always the role that Junior Samples played on the reboot of Hee Haw.

Wednesday, April 29, 2015


Scott Lemieux of LGM writes in The Guardian how weak the opponents of marriage equality were during oral arguments yesterday at the Supreme Court.

It would be premature to declare that the US supreme court will guarantee a right to same-sex marriage in all 50 states, but that’s where the smart money is: [Tuesday’s] oral argument allows supporters of marriage equality to remain optimistic that nationwide legalization is in the not-so-distant future.


The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.

And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.

As anyone who has read the court’s opinion eviscerating the Voting Rights Act knows, however, that the arguments for the constitutionality of bans on same-sex marriage are terrible doesn’t mean that the court won’t embrace them. So all court-watchers have to look to the swing vote, Anthony Kennedy, for clues.

Kennedy was not particularly active during the oral argument and, in isolation, his questions reflected ambivalence, echoing both the traditionalist concerns of Roberts and suggesting that bans on same-sex marriage undermined the dignity of gays and lesbians.

However, one clue to Kennedy’s eventual vote can perhaps be found in his silence during the second part of oral argument, which focused on the question of whether states could be required to recognize same-sex marriage performed in other states even if their own bans were upheld. The most plausible explanation for Kennedy’s disinterest in the question is that he believes it will be moot because all of the state bans will fall.

When combined with Kennedy’s past support for LGBT rights and the near-certainty that the four Democratic nominees will vote to strike down the bans, this suggests that opponents of marriage equality are right to be desperate. The weakness of their arguments suggest that the Supreme Court’s recognition of the same-sex marriage rights is long overdue.

I’m sticking with my prediction of 5-4 in favor of marriage equality, and you can count on fresh outrage and fundraising from the haters.  They’ll find something else to blame on The Gay.

Tuesday, April 28, 2015

Hear Ye, Hear Ye

Via SCOTUSblog, here are the audios of the arguments made today before the Supreme Court on marriage equality.  Note: audio auto-starts.

Question 1: Does the Constitution require states to recognize same-sex marriage? [Transcript.]

Question 2: Whether states can prohibit same-sex marriages but nonetheless be required to recognize same-sex marriages that legally took place somewhere else. [Transcript.]

Gay Day at the Supreme Court

This morning the United States Supreme Court will hear arguments on whether or not same-sex couples have a constitutional right to get married, and whether or not states must recognize same-sex marriages from other jurisdictions, including outside the United States.

The outcome of this case will have a very profound effect on millions of people regardless of their orientation or marital status, and it will also signify the state of this nation in terms of the social and civil contract we have with both our government and each other.  I’ve been trying to think of a case that has been heard before the Court in my lifetime that could have a larger impact on me personally, and at the moment, I can’t come up with one.

I don’t have a stake in this case at the moment.  I do not have a partner (hope springs eternal, however), and I am presently living in a state where marriage equality exists by court order.  But the very idea that something as fundamental as the legal and social contract between two people embodied in the idea of marriage, be it blessed by a religious body or simply a contract signed in front of witnesses at a courthouse, should be unavailable to me because my genetic makeup has programmed me to love someone of the same sex goes against everything I believe this nation stands for: the simple idea that all people are equal under the law.  That is the basis of all the other rights and laws enumerated in the Constitution, along with the idea that those rights are not granted by the government but by the people.  If I cannot be treated the same way as everyone else for no other reason than an innate quality such as sexual preference, then the rest of those rights, however noble, are meaningless.

I don’t want to rehash in depth every argument I’ve made about marriage equality since I started writing this blog; that marriage is a contract, not just a religious rite; that churches and organized religious bodies have had the right to refuse their rites to those they don’t embrace long before same-sex marriage came along; that anything less than full recognition is separate-but-equal all over again.  The cases have been made again and again at every level of both legal and social adjudication by people much more versed in the law than me.

As I noted, I do not at present have a need to be granted the right to get married to the man I love.  But there should be nothing to prevent that from happening should I be so fortunate — and blessed — to find myself wanting to avail myself of it.

Monday, April 13, 2015

Tough Sell

I’m sure there’s a joke out there about how easy it is to get a lawyer to represent even the most heinous or ridiculous client as long as there’s a chance of a retainer or billable hours; as one of my lawyer friends says, “They’re innocent until indigent.”  But what about taking up the side of a case that has a high profile — say going before the Supreme Court — and is on the unpopular side of a social issue?

Every criminal defendant is entitled to a lawyer who will defend him or her to the best of their ability.  Not so with civil cases, and where the side of history is definitely moving in one direction, it’s getting increasingly hard to find prominent attorneys who will defend the other side.  According to Adam Liptak at the New York Times, that’s what’s happening with marriage equality.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

Conservatives are claiming that attorneys who are anti-gay marriage are being “bullied into silence.”  In reality, the fact is that a good attorney is going to have a rather difficult time coming up with an argument for keeping marriage bans in place that do not rely on Scriptural imprecations — not something that will go over very well in a secular court system — or by invoking some pretzel-logic that states that the Fourteenth Amendment’s equal protection clause doesn’t apply to gay people.  (Several weeks ago I asked a prominent defense attorney to come up with a reason for denying gay couples the right to marry.  His reply was that the way he would go would be to base it on states’ rights, but he also admitted that that line of reasoning had lost its appeal after the passage of the Civil Rights Act of 1964.)

I also think the attorneys who are shying away from defending anti-gay marriage laws are well aware that they are arguing for the wrong side both in terms of civil rights and history.  And even if they should win, they will still go on the record as being the lawyer for the side that stood in the way of our inevitable movement towards full equality.  That’s probably not something you want to have on your c.v.

Tuesday, March 31, 2015

The Great and Powerful Gays

Here’s a novel approach to perpetuating discrimination against gays and lesbians: they already have too much power, so let’s not give them any more.

Gay Americans simply have too much political power to be afforded equal rights under the Constitution, according to a brief filed by the state of Ohio asking the Supreme Court to permit that state to continue to practice marriage discrimination. Ohio’s claim comes as part of a greater effort to convince the justices that laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.”

Under this provision of the Constitution, most forms of discrimination are entirely permissible. It is acceptable, for example, for the government to discriminate against unqualified job applicants when making hiring decisions, or to discriminate against people who commit serious crimes in deciding who to incarcerate.

When the government discriminates against groups that have historically been subject to unequal treatment that has little basis in their ability to “perform or contribute to society,” however, the Court applies what is known as “heightened scrutiny” to such discrimination. This is why discrimination on the basis of race or gender is typically not allowed, because racial minorities and women have historically been subject to the kind of irrational discrimination that triggers heightened scrutiny. A major question in the marriage equality litigation now pending before the Supreme Court is whether the nation’s long history of irrational discrimination against gay people also justifies applying such scrutiny to laws that discriminate on the basis of sexual orientation.

Uh, excuse me, but look next door, Ohio.  If we were so powerful, Indiana would not only not have passed their RFRA last week, we would have forced the state to do a complete make-over, made the Purdue football team play in tank-tops and short-shorts, replaced the state song with “It’s Raining Men,” and made Birkenstocks the official state shoe.


Friday, March 13, 2015

Supreme Irony

Steve Waldman at Washington Monthly has a suggestion for a post-presdiency career for Barack Obama:

If Hillary Clinton wins, Obama should be her first Supreme Court appointment. It’d be good for her, and very good for progressives.

Would he want it? It’s possible he’d view it as too confining, but it may be the only job a former president can get that won’t seem like a step down.

I love it.  Not only is there precedent for it (William Howard Taft went to the Court after serving as president), it would set up one of the more interesting confirmation hearings in the Senate, even assuming that the Democrats are back in control and could get him confirmed.  It would make the Anita Hill hearings look like a Quaker potluck.

Of course he would have to recuse himself from a number of cases that involve his administration, but the best part would be seeing the Republicans, who have been waiting for him to leave the stage ever since he arrived, would have to live with him for the rest of his life.  He’ll be 55 in January 2017; he’d be one of the youngest members on the court.