Segregation now, segregation forever

You may recall that the Southern States did not take kindly to the Supreme Court's civil rights decisions.  They barred the schoolhouse door to prevent integration.  They fervantly promised that segregation would live on.  They contested the supremacy of the Federal Constitution over their own laws.

And, here in 2015, they are doing the same thing.  The NY Times

Republican state legislators in Oklahoma, South Carolina and Texas have introduced bills this year that would prohibit state or local government employees from issuing marriage licenses to gay couples, despite federal court rulings declaring bans on same-sex marriage unconstitutional in those states and questions about the constitutionality of the proposed state laws. The bills would also strip the salaries of employees who issued the licenses.

Political figures including Mike Huckabee are actively calling for  states to refuse to recognize the Federal Courts' decisions.


But history tells us they haven't a leg to stand on. Back in 1958, Arkansas governor Orval E. Faubus claimed that he was not bound by Brown v. Board of Education. He sent the National Guard into Little Rock to block school integration.  From THe Atlantic:

The Little Rock dispute brought federal troops to Central High. It led to the landmark opinion in Cooper v. Aaron, the only one in history signed by all nine Justices, which proclaimed that “the federal judiciary is supreme in the exposition of the law of the Constitution,” and that Brown “is the supreme law of the land.” All state officials, the Court noted, take an oath to support the federal Constitution. “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

So, in response to the efforts to nullify marriage equality,

The answer to this argument is the same today as it was in 1958....no sovereignty shucking or jurisdictional jiving will, in the long run, prevail. If the Supreme Court, as seems likely, finds that same-sex couples have an equal right to marry, those who stand in the courthouse doors will certainly lose, and possibly pay.

But regardless there is a cost:

Huckabee and Moore, like Faubus, will take their place as laughingstocks of history. But that is not to say that they can do no damage; many of history’s villains masked malign intent with a touch of the clown. Faubus’ intractability led to riots in the streets of Little Rock; to beatings of reporters by a mob; to threats and trauma that would remain vivid for the nine black students for the rest of their lives. And if the high court strikes down same-sex marriage bans, clerks or legislators who invoke pretended power to ignore that decision will spread lasting damage and pain far more widely than they know. Official discrimination and hatred scar their victims, however bravely they press on to eventual victory. 

The Court can minimize that cost, by speaking clearly about the rights and dignity of LGBT people.  

Justice Kennedy’s three gay-rights opinions have been ground-breaking, but also opaque. He has consistently refused even to discuss whether sexual-orientation is more like race or red hair. Instead, he has insisted that each challenged provision was invalid no matter what level of “scrutiny” applies. 

The rumblings from the South give the Court notice that equivocation may encourage resistance. Now might be the time, with four other Justices at his back, for Kennedy to say forthrightly that when any agents of the state—legislators, judges, clerks—discriminate on this basis, they violate both the Constitution and their oath. 

This time, we can but hope that the trumpet the Court sounds will not be uncertain.

The secret history of same sex marriage.

Well, who knew?

If we conceive of marriage as the long-term, exclusive cohabitation and sexual union of two people, then, in the Christian west at least, few male couples would qualify before the dawn of the 20th century. In fact, for the last 400 years, the practice of same-sex marriage has been largely the preserve of women. 

To begin with, this was a secretive and punishable matter. In medieval and Renaissance Europe, it was often not even possible for two women to live together independently: households were supposed to be headed by men. Yet we know of a few 16th-century cases of women who disguised themselves as men and lived in marriage with other women. ....

Such cases were even more common in 18th-century England. In the early 1730s, when both were in their late teens, Mary East and her girlfriend decided to move to London and make a life together as husband and wife. Mary put on male clothes and turned herself into “James How”. The two of them became successful publicans and pillars of their East End community. Everyone presumed they were married. Over the years, James was elected to almost every parish office: s/he served as the foreman of juries, on the night watch, as overseer of the poor. For more than three decades, they kept their secret, and lived as a married couple. 

It is impossible to tell how many other female husbands lived undetected with their wives. Quick, secret marriages were easy to contract in London until the 1753 act: there was a busy trade in no-questions-asked ceremonies in taverns, brothels, prisons and chapels. On 15 December 1734, a Soho couple calling themselves John Mountford and Mary Cooper decided to get hitched. The first clergyman they approached refused to do it. “Suspected 2 women”, he wrote in his notebook. But they would easily have been able to find another priest. A few years later, a London minister performed the wedding of Elizabeth Huthall and John Smith, “a little, short, fair, thin man, not above 5 foot”. Afterwards, he wrote “my clerk judged they were both women”, but they left as a legally married couple. “After marriage I almost could prove them both women,” runs yet another laconic cleric’s note, “the one was dressed as a man.” That pair, too, departed happily married. (Bishops and legislators take note: same-sex marriages have already taken place within the Church of England.)

A Mormon Shell Game

Yesterday the headlines blared that the Mormons (or Latter Day Saints, LDS) had come out in support of non-discrimination rules for housing and employment for gay people.

Today, people are noticing the catch.  The so-called support comes with a large poison pill, the recurrent theme of "religious freedom".  That is, they want people who express religious objections to gay people, to still be free to discriminate.

Andrew Rosenthal: 

The Associated Press explained: “Mormon leaders still want to hire and fire workers based not only on religious beliefs, but also on behavior standards known as honor codes that require gays and lesbians to remain celibate or marry someone of the opposite sex. The church also wants legal protections for religious objectors who work in government and health care, such as a physician who refuses to perform an abortion, or provide artificial insemination for a lesbian couple.”

Substitute the word “black” or “Jewish” or “Catholic” or, say, “Mormon” for LGBT in these statements, and everyone would be outraged.

Or, as Sarah Warbelow, legal director of the Human Rights Campaign, an advocacy group for LGBT rights, put it: “All Americans should have the right to be employed, receive housing and services in environments free of discrimination. We await the day the church embraces that fully, without any exceptions or exemptions.”

Hobby Lobby, the gift that keeps on giving. 

The latest in "unhinged"

The panic of the extreme right over marriage equality continues to bubble in ugly ways.  And Oklahoma appears to be the epicenter of The Crazy.

Item:  Oklahoma rep thinks marriage should be restricted to religious practitioners.

Under House Bill 1125, judges would no longer have the power to officiate at marriages and court clerks would not issue marriage licenses. The clerks' only responsibility would be to file the licenses that couples received through their officiating clergy member. Of course, clergy can grant licenses according to their own religious beliefs, which again leaves a lot of gay couples on the outside looking in.

Representative Russ, (photo right) however, has a solution for those who aren't religious or aren't able to receive religious approval.

"They don't have a spiritual basis for a marriage and don't want to have a clergy member or a priest or someone involved in the spiritual aspect, then they can file an affidavit of common-law marriage," Rep. Russ told reporters.

Item:  ever reliably anti-gay Oklahoma Rep Sally Kern has a trifecta of anti-gay bills.  In addition to outlawing taxpayer's money supporting gay marriage licenses, and legalizing ex-gay therapy, Rep Kern wants to specifically enable anti-gay discrimination:

House Bill 1597 would make it legal for businesses to flat-out refuse service to LGBT people:

No business entity shall be required to provide any services, accommodations, advantages, facilities, goods or privileges related to any lesbian, gay, bisexual or transgender person, group or association.

Supermarket, hotel, paramedic, hospital:  you can all discriminate against Teh Gayz.  Leave 'em dying on the street, if you want.

This is reminiscent of the brief effort in Washington to pass a similar bill, at which a legislative staffer commented if a supermarket refuses to sell food to gay couples, they can just grow their own.

Animus, much?

Meanwhile, not in Oklahoma ,Ben Carson warns gays ominously that if they keep asking for wedding cakes, they might be poisoned.

Holding hands: Video Sunday

A straight guy sees what it's like to hold another man's hand in public.

ALABAMA!

Chris Geidner:

“ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are hereby DECLARED to be unconstitutional because they violate they Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The defendant Luther Strange, in his capacity as Attorney General for the State of Alabama, is hereby ENJOINED from enforcing those laws.”

Additionally, Granade provides no stay in her ruling, nor does she provide any discussion of whether a stay was considered. Without a stay, the ruling goes into effect immediately — meaning Granade’s intention appears to be that same-sex couples can marry in Alabama immediately.

A darker view of SCOTUS...

One oddity in the SCOTUS order is that they phrased the questions they want to argue:

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?

And neither of these are about the rights of gay people, but about state's rights.

   From Bradblog:

Harvard law professor Laurence Tribe .... told the New York Times that "The rephrased questions technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples."

Indiana University's law professor Steve Sanders, writing at the American Constitution Society blog speculates: "Chief Justice Roberts (who may be thinking about how history will judge him) might see the possibility for some creative middle ground: 'yes' on the right to remain married, but 'question-reserved-for-another-day' on the right to get married."
..... 

"In a year or two, the Court could come back," Sanders continues, "and finally drag Alabama, Mississippi and Texas into line. Not unlike Roberts' opinion upholding Obamacare on taxing-power rather than the commerce clause grounds, such a result could be seen as statesmanlike, even Solomonic." 

Hasen, too, speculated that this could be an attempt by Chief Justice John Roberts to split the baby. "This strikes me as the handiwork of the Chief Justice, perhaps looking for a way to have as narrow a win for same sex couples as it is possible to achieve," he wrote. "That is, if the Chief calculates that Kennedy and the liberals are going to reverse the Sixth Circuit no matter what, perhaps this is a way to have that majority write as narrow an opinion as possible."

 That would leave LGBT people in the remaining 13 states in a limbo, where they have to go out of state to be married, and then have their marriage grudgingly recognized at home.  It's a mess, and I hope it doesn't happen.

Is marriage discrimination a form of sex discrimination?

Lawyer Ilya Somin thinks the question should be decided on the grounds of sex discrimination.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism. 

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination. 

By contrast, sexual orientation actually has no effect on the way the law operates... 

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. 

....
It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol.  

Will Roberts vote for marriage?

The New Republic thinks he might.

After all, Roberts has seen what a watershed decision Windsor has been, and he must surely recognize that if the Windsor majority takes the final step to recognize full marriage equality (as it should), that decision will be even more historic and undoubtedly one of the greatest legacies of the Roberts Court. Will Chief Justice Roberts be content to have such a momentous ruling be issued over his dissent, or will John Roberts want to be part of one of the greatest legacies of the Roberts Court?

We should know by the end of June.

That would be a 6-3, far more satisfying that a 5-4.  Most commenters think that Alito will go with Thomas and Scalia in opposing equality.

Panti Bliss : TEDX (Video Sunday)

The Republic of Ireland will decide in May whether to allow marriage equality. Northern Ireland (part of the UK) does not allow same sex marriages.

Here we go: SCOTUS grants cert

As predicted, the Supreme Court decided to address the split in circuits (with the 6th circuit upholding equal marriage bans).  They have granted certiorari to all the cases from the 6th circuit, with arguments in April and a decision in June.

Is this the endgame?  What will be the civil rights legacy of the Roberts court?

From the NY Times:

The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging the bans in each of those states. 

The court said it will hear two-and-a-half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.” 

The last hour will concern a question that will be moot if the answer to the first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.” 

ThinkProgress is hopeful:

Although the Court is unlikely to hand down a decision on marriage equality until June at the earliest, it may have already tipped its hand. Last October, before the Sixth Circuit weighed in, the Court began denying review of lower court decisions ruling in favor of marriage — an act that also had the effect of allowing those decisions to go into effect in many states. A decision against equality at this stage could potentially unmarry couples who benefited from those lower court decisions. At the very least, it would create the anomalous situation where people who got married before a certain date would remain married, but no new same-sex marriages would be permitted in some states. 

It is unlikely that a majority of the Court would have allowed these lower court decisions to take effect unless they believed that the Supreme Court was likely to rule the same way.

Unhinged

Is it just me, or is the anti-equality side getting increasingly unhinged?

In South Carolina and Texas, lawmakers are trying to pass laws that would refuse to pay the salary of a government employee who legally issued a marriage license to a gay couple .

One activist is calling for the National Guard to be called out to prevent marriages from happening.

More anti-gay laws, under the "religious freedom" meme, are popping up.  Most striking is the one in Virginia proposed to allow anyone to refuse service to any LGBT person.  Need a paramedic?  Too bad, this one won't do CPR on a gay person.  (Its chance of passage is slim, but still...)

Get a grip, people!  Gay people are getting married. The sun still rises.  End of story! 

Interesting how they all have the same handwriting

In Houston, anti-gay activists filed petitions to repeal the city's anti-discrimination law (it must really frost them that the Mayor is a married lesbian).  The petitions were rejected for insufficient signatures and they are suing as a result.

Curiously, many of the people who signed the petition have exactly the same handwriting.

Isn't that odd?

What is religious freedom, anyway?

Perhaps what you think and what those against us think religious freedom means, are two different things.  

Rob Donaldson, writing in LGBTQnation:

To Mr. Bruni, or to Robert Boston, author of “Taking Liberties: Why Religious Freedom Doesn’t Give You the Right to Tell Other People What To Do,” it is the “right of people to believe what they do and say what they wish — in their pews, homes and hearts.”

But conservative Christians disagree. To them, it goes much further....

..., they see it in what they believe is the loftier context of how God views everyone’s acts, as either virtuous or sinful. Whether or not such acts are legal under American law is, to them, secondary. They think Mr. Bruni and his allies would define religious freedom so narrowly, as an “interior and private” thing, excluding religiously motivated acts, that it becomes “no freedom at all,” in the Mormon church’s words.

The problem with this view is that, taken to its logical conclusion, it becomes precisely what the Supreme Court warned against in 1879: it would make religious belief “superior to the law of the land, and . . . permit every citizen to become a law unto [themselves].”

He concludes,

as long as the parties in this debate fail to agree on the very definition of “religious freedom,” they will continue to waste time and energy talking past each other about how to protect it. 

I think this can be described simply as a conflict between religious freedom (the interior, private view), and religious privilege (the exterior practice).

See more of our discussion about religious freedom.

Video Sunday: Keep it clean

More advertisers recognizing LGBT couples. Cute. Once filthy commerce gets it, it's unstoppable....

Vigorous dissent in the 9th

Uh-oh.

From Scotusblog:

 Three judges of the U.S. Court of Appeals for the Ninth Circuit, sharply protesting a three-judge panel’s October ruling in favor of same-sex marriage in two states, argued on Friday that courts at that level of the federal judiciary have no authority to decide that question. The Supreme Court, those judges argued, took away that power forty-two years ago.

The critique, one of the strongest dissenting statements yet issued amid a wave of federal and state court rulings striking down bans on same-sex marriages, came as the en banc Ninth Circuit refused — by a vote of eight to three — to reconsider the panel’s combined decision in cases from Idaho and Nevada.

.... The heart of the dissent was its argument that lower courts are still bound by the Supreme Court’s one-line decision in 1972 in the case of Baker v. Nelson, declaring that a claim to same-sex marriage did not raise “a substantial federal question.” ....

Judge O’Scannlain did make some of the same other points that the Sixth Circuit panel’s majority had, such as the argument that an issue as sensitive as same-sex marriage should be left to the people and the state legislatures to resolve, and that it will be better for the nation and for its people to have it worked out by representative government rather than by the courts. ...|

The Ninth Circuit dissent, though, added another point that went beyond the Sixth Circuit’s ruling against same-sex marriage. The dissenters said that the courts simply have no authority to decide any question about marital policy, because there is a flat “domestic relations exception” to federal court jurisdiction over that field of law, since it is to be left to the states.

FLORIDA

Over 70% of Americans now live in states with Marriage equality.  Tomorrow, the SCOTUS may decide to take up the issue in conference discussing the appeals brought before it, particularly the 6th circuit.  There's a good summary of the SCOTUS cases here.

Despite the ever more desperate screams of the opponents, polls indicate that  56% of Americans approve of legalizing same sex marriage, including 41% of Republicans. 

This is almost over. 

Marriage Matters Because (Video Sunday)