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A Stealth Supreme Court Push to Aid Trump

This September I will have started law school fifty years ago (I was one of the youngest in my class, but it's increasingly hard to still view myself as young) and I have closely followed the U,S, Supreme Court ever since and even met a Chief Justice some years back.  Never in that period has the Court been so openly partisan and extreme as what we are witnessing now. The Court took Trump's immunity claim when it should have simply left the DC Circuit Court of Appeals ruling in place.  The goal? Delay so that Trump would not face trial before the November election.  Even if the Court were to let the DC Circuit ruling stand, the desired delay will have been accomplished.  The Idaho abortion ruling just  handed which sent the case back to the lower courts for supposed additional fact finding similarly had deliberate delay as its apparent motivation.  The right wing, extreme majority of justices did not want another draconian anti-abortion ruling to come down before the election and harm Trump's re-election chances. One can well expect the case to come back after the election and it is easy to see the majority - many obsessed with their personal religious beliefs that the want to impose on the nation (Thomas and Alito in particular) affirm Idaho's  horrific ban on emergency room physicians treating women in emergencies and in need of abortions.  A column in Salon looks at the majority's attempt to aid Trump and Republicans in November.  Here are excerpts:

"Today’s decision is not a victory for pregnant patients in Idaho," Supreme Court Justice Ketanji Brown Jackson declared on Thursday. "It is delay."

In her dissent on Moyle v. the United States, Brown Jackson highlighted the only takeaway journalists and voters should get from this case about whether Idaho can force emergency room doctors to turn away pregnant patients in crisis. During oral arguments in April, it became clear that the conservative justices do not care if women experiencing a failing pregnancy are denied care, which could result in permanent injuries or even death. Justice Samuel Alito even took time to gripe that the federal law requiring emergency rooms to provide stabilizing care did not use the phrase "unborn child." He got annoyed when Justice Sonia Sotomayor mentioned the actual living people being airlifted out of Idaho so doctors in nearby states could help. Physicians for Human Rights documented some of the conditions women who are denied this treatment can experience: "stroke, seizure, liver damage, kidney failure, bleeding, complications," as well as "septic shock," which can lead to the loss of the uterus or even death.

Sentencing women to organ failure or even death for the "crime" of having a pregnancy go wrong will be politically unpopular for Republicans, however, and this is a presidential election year. So, as a massive campaign contribution to Donald Trump, the GOP majority on the Supreme Court decided they won't be deciding on this until some point in the future, oh-so-coincidentally after the election. Instead, the justices punted the case back to the lower courts, to fiddle with it more. Next time, the conservative majority will likely feel the political environment is more conducive for a "just die already, ladies" opinion. 

In her dissent, Jackson doesn't say the word "election," but she does telegraph her withering contempt for the procedural bad faith employed by the Republican justices. "And for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas, and elsewhere will be paying the price," she writes. 

Making pregnant patients pay the price has always been the point for conservatives. Pregnant women are a favorite scapegoat for Christian right anger over social change. As more women get education and jobs outside of the home, conservative Christians have turned ever more devoted to forced childbirth. . . . As more women delay marriage — or avoid it altogether — Republican views around abortion became more sadistic. Abortion bans in places like Idaho are so draconian that, even when there's no chance a pregnancy will result in a living child, patients are still denied abortion. 

That the six Republican justices on the Supreme Court are hopelessly in the tank for Trump has been well-established, and not just because three of them were appointed by the fraud himself. . . . . there was no need for the Supreme Court to entertain Trump's ludicrous claim to be "immune" from federal prosecution for his attempted coup. Instead, the court took up the case and has delayed ruling on it for so long that there's little to no chance of a trial before the election. 

The same logic appears to be in play in this emergency room case. As Jackson notes in her dissent, there hasn't been "any change in today’s cases that might eliminate or undermine the need for this Court’s review." She points out that this case or one just like it will be back on their docket fairly soon. Punting makes no sense from a legal or material view. Unless, of course, the material interest is in making sure Trump wins the election. 

By playing these games, the Republican justices no doubt hoped to score friendly headlines that made it seem they and the larger GOP aren't so bad. . . . Even cursory readers may understand that, if Trump gets elected, laws forcing women to bleed out in hospital parking lots will go into full effect. 

There's a good chance this could backfire on the court and Trump's campaign. Trump wants nothing more than for the abortion issue to go away, especially as there's no doubt that President Joe Biden's campaign plans to run non-stop ads featuring Trump bragging about how he's the one who got Roe v. Wade overturned. If voters understand that Republicans are just getting started with the abortion bans, this will remain a live issue.

On the question of emergency care for women experiencing a failing pregnancy, the choice is a stark one: If Trump is in the White House, the federal government will tell states to ban doctors from intervening in these emergencies. If Biden is president, the federal government will continue to insist that it's illegal to force pregnant women to bleed to death rather than have a doctor help her. 

"The cruelty is the point." For people who want to lash out at women, forcing a stranger into kidney failure scratches that sadistic urge. 

But there's a slightly less abstract concern in the mix, as well: women who use pills to evade abortion bans. Abortion pills are easy to transport and there's significant evidence that women in red states are using pills to abort at home, away from the prying eyes of law enforcement. In the vast majority of cases, this can be done safely. In a small percentage of cases, the abortion is incomplete and a doctor at the hospital needs to finish it. There is no way, from a medical standpoint, to tell the difference between a woman who is experiencing a natural miscarriage or one induced by a pill. To punish women who have side effects from abortion pills, Republicans would condemn all women experiencing pregnancy failure, even when that pregnancy was wanted. 

Perhaps Republicans are hoping the complexity of this case creates a messaging problem for pro-choice forces. But the message is simple: "If Trump wins, hospitals will have to turn pregnant patients away." This will be reinforced by the still ongoing march of horror stories of women who got catastrophic diagnoses from their ob-gyn and were forced to travel out of state for a medically necessary abortion. Or worse, women who are forced to give birth to a dead baby. In Texas, the abortion ban has already led to a 13% increase in infant deaths. Most of that is due to women continuing pregnancies that doctors would have aborted, if it were legal.

The Supreme Court can play all the games they want, but they can't dance away from reality. Abortion bans are devastating for women's health care across the country. If Trump gets elected, it will get even worse. It's as simple as that. 

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CNN's Debate Was a Travesty

Last night's debate was a travesty that underscored the sad reality that the mainstream media has learned nothing about Donald Trump and in its "both sides" obsession continues to undermine democracy.  Yes, Biden performed poorly, but Trump was given a platform to spew lie after lie and was not called out on the lies by the moderators who failed the American public miserably. If these moderators are "the best of the best" as some claimed, we as a nation are in dire straights.   Non-political junkies watching the travesty all too easily might believe Trump's incessant untruths because fact checking was non-existent. Trump is not a normal candidate, has no grounding in the truth (or basic morality) and should never be given a platform to lie without any consequences or accountability.  If American democracy ends with the re-election of Trump, the media will hold a great deal of the responsibility.  A column in The Atlantic by a former Republican bemoans CNN's abject failure. Here are excerpts:

The first question about January 6 was asked at Minute 41.

Donald Trump replied with a barrage of crazy lies, ending by seeming to blame Nancy Pelosi’s documentarian daughter.

Then, just to be fair, CNN moderator Jake Tapper followed up with a question to President Joe Biden. Did he really mean to imply that Trump’s voters were a danger to democracy?

Biden fumbled the answer, as he fumbled so many other answers. The octogenarian president delivered a fiasco of a performance on the Atlanta debate stage. But the fiasco was not his alone.

Everything about the event was designed to blur the choice before Americans. Both candidates—the serving president and the convicted felon—were addressed as “president.” The questions treated an attempted coup d’état as one issue out of many. The candidates were left to police or fail to police the truth of each other’s statements; it was nobody else’s business but the two men at the podiums.

It may be no coincidence that the modern television presidential debate was born at a time of national political consensus. In 1960, John F. Kennedy and Richard Nixon presented a choice very familiar to viewers in the days of three big channels and a limited number of mass-market products: You could choose Crest or Colgate, two very similar products to meet a similar need.

We live in a political culture in which some of us think the supreme issue of our time was an attempted violent overthrow of the Constitution, while other Americans think it was Hunter Biden’s laptop. There are means and institutions to arbitrate those differences. That’s what elections do. But television debates cannot do it, because television debates don’t happen unless they get buy-in from “both sides.” Therefore television debates are designed necessarily to ratify the concept of “both sides.”

Through the uproar, it will be important to keep in mind that this election is not about Biden. It’s about you and your commitments and your values. Biden is just the instrument. Like any instrument, he’s imperfect. But better an imperfect instrument than a would-be autocrat who demands a cult of personality.

A century ago, the socialist leader (and presidential candidate) Eugene Debs rebuked followers who idolized him: “I would not lead you into the promised land if I could, because if I led you in, someone else would lead you out. You must use your heads as well as your hands, and get yourself out of your present condition.”

Against the threat of Trump, Americans must save themselves.

The job of doing so cannot be delegated to some charismatic savior—and anyway, that charismatic savior has yet to present himself or herself. Television always wants to reduce active human beings to passive viewers. The presidential debate format has especially served this purpose: “Do I prefer the candidate in the red tie or the blue one?”

This most recent debate has taught the danger of spectatorship. The job of saving democracy from Trump will be done not by an old man on a gaudy stage, but by those who care that their democracy be saved. Biden’s evident frailties have aggravated that job and made it more difficult, but they have also clarified whose job it was. Not his. Yours.

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Ominous Signs for Gay Rights Keep Emerging

When I first came out of the closet, gay sex in Virginia could subject one to felony charges and there was no legal recognition of same sex relationships. Then Lawrence v. Texas struck down the sodomy laws in Virginia and 12 other states and  the Obergefell ruling made same sex marriage legal nationwide.  Now, some fear - rightfully, in my view - that reversal of both rulings could be on the agenda of the right wing extremists who now control the U.S. Supreme Court.  Worse yet, Donald Trump and his MAGA followers, many of who are white "Christian" nationalists and open racists and homophobes, want to take the nation back to the 1950's.  Trump and the larger Republican Party are totally fine with this roll back of rights and, if it wins votes among the MAGA base, seemingly would be only to happy to bring back both the sodomy laws and the Jim Crow laws.  Some of the most extreme MAGA pastors openly call for executing gays.  All of which leaves me dumbfounded as to why any gays and any blacks (especially black men who are particularly loathed and demonized in MAGA world) would support  Trump and/or the GOP.  Meanwhile, too many of my straight friends appear oblivious to what a Trump re-election and Project 2025 would unleash on the nation.  Would take a reversal of the right to contraception - something Clarence Thomas openly supports - to wake these people up?  A piece in The Atlantic  looks at the ominous signs around us.  Here are highlights:

What happens to a dream undone? For many Americans, the progress of gay rights over the past quarter century was one of the country’s greatest achievements. Even as social change on other fronts stagnated or reversed, LGBTQ Americans gained new acceptance and protections. In 2002, Gallup found that just 38 percent of Americans believed that homosexual behavior was morally acceptable. Barely more than a decade later, in 2015, that number was 63 percent; that year, the Supreme Court granted same-sex couples the right to marry. This change was celebrated by its beneficiaries, of course, and by progressives, but also more broadly. By 2022, 55 percent of Republicans supported same-sex marriage, according to Gallup—a huge leap from just 22 percent 10 years earlier.

Now alarm bells are ringing for same-sex marriage and LGBTQ rights in general. A new Gallup poll shows that Republican approval of homosexual rights has dropped from 56 to 40 percent in two years, and that support for same-sex marriage is down to less than half, at 46 percent. Liberal justices on the Supreme Court warned in a dissent last week that their colleagues are chipping away at the right to marriage. Over the past four years, Republican policy makers have mounted a campaign against transgender rights and discussion of homosexuality in schools, but the result appears to be a wider backlash against LGBTQ rights.

The slippage belies the Whiggish view of inexorable if slow progress that many liberals, most notably former President Barack Obama, espoused in the early 21st century. The Supreme Court’s abortion decision in Dobbs shows that even things that courts have long treated as fundamental rights can be reversed. But although that ruling was a shock to many, abortion has long been a subject of entrenched division. Gay rights seemed like an area where public opinion was moving quickly, and in one direction.

[T]he reversal fits with a general revanchist push by the MAGA movement against cultural change. The pushback on transgender and educational issues may have looked to some Americans like simply pumping the brakes—after such fast change on gay rights generally, slower movement was merited. These new developments, however, indicate that a growing faction supports not just pausing change but reversing it.

Donald Trump makes for a strange figurehead for such a movement. Just as Trump was a libertine who favored abortion rights before transforming himself into a hero of evangelical Christians who brought down Roe v. Wade, he seems to have had little animus toward LGBTQ people before his political career.

But just as Obama disingenuously claimed to have “evolved” toward greater support for gay rights once in the White House, Trump appears to have made a strategic choice to devolve. He first indicated that he’d preserve an Obama-era rule providing workplace protections for LGBTQ employees, but his administration proceeded to water down or roll back existing rules, and to institute carve-outs for religious organizations.

What happened from 2022 to 2024? The most obvious answer is that Republican candidates made attacks on LGBTQ people a centerpiece of the 2022 midterm elections. Red states and jurisdictions passed laws restricting discussion of sexual orientation in schools, some of the more than 1,800 anti-LGBTQ-rights bills introduced nationwide in the past four years. Bans on books that discussed the subject spread widely. Advocates claimed, with no basis, that these books and other events were part of a dark conspiracy to “groom” children into being gay.

More than just an attempt to slow down change, these political campaigns have reversed public opinion, at least among Republicans. Views among Democrats and independents remain basically stable, which is one reason approval for same-sex marriage still sits at 69 percent, down from 71 percent a couple of years ago.

If Trump wins in November, his allies are pushing for a greater rollback in LGBTQ rights through executive policy, part of a larger assertion of presidential power; a Republican majority in Congress, bolstered by shifting GOP-voter opinions, could make changes statutory.

These moves might be constrained somewhat by electoral imperatives. The Supreme Court would not be. The Dobbs decision showed that the most conservative justices have no qualms about issuing politically incendiary opinions, and that Chief Justice John Roberts is unable or unwilling to restrain them. Justice Clarence Thomas has already argued in a concurring opinion that the Court should reverse its rulings protecting same-sex marriage and relationships as well as contraception. The conservative bloc’s ruling in a case about an American woman and her immigrant husband last week drew warnings from the minority that same-sex marriage could soon be threatened.  . . . . a Trump victory would solidify the Court’s rightward direction, and possibly shift it yet further . . . 

American law has treated same-sex marriage, like abortion, as a fundamental right since the 2015 ruling. If Dobbs shows that such rights can be taken away, it still doesn’t explain what that would look like. The end of a pregnancy is a moment in time, and past abortions aren’t reversed. But if the Court revoked the right to same-sex marriage, what would happen to couples who married and established lives based on that right? No one knows, but surely the answer is nothing good.

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Is Gay Marriage Next on the SCOTUS Hit List?

Today's reality is that the U.S. Supreme Court is controlled by a group of far right extremists who would restrict rights and freedoms under the U.S. Constitution to those that were understood at the time of the Constitution's signing.  Worse yet, two justices - Thomas and Alito - would happily impose their own extreme, antiquated and myth based religious beliefs on every American citizen and seemingly would be very comfortable in establishing a Christian theocracy. In the Dobbs ruling striking down Roe v. Wade, religion and a very restrictive and cherry picked reading of history were paramount in the majorities ruling.  Modern science, women's rights and the will of the majority of Americans simply did not matter and Alito made it clear he has the mindset of the Spanish Inquisition when it comes to loathing anyone who doesn't adhere to his dogma. As for Thomas, he made it clear that he would reverse all rulings based on the right to privacy and being in control of one's life, including the right to contraception.  Now, in a ruling that could have avoiding looking at the issue of marriage, the SCOTUS majority has perhaps signaled that the days of the Obergefell decision may be limited. A column in the Washington Post looks at this potentially ominous development:

Is the Supreme Court’s conservative majority plotting to chip away at the right to same-sex marriage or other constitutional protections? The liberal justices seem to think so and issued an ominous warning to that effect in a dissent on Friday as part of an otherwise obscure immigration case.

The case, Department of State v. Muñoz, involves Sandra Muñoz, a California woman and U.S. citizen, whose husband, Luis Asencio-Cordero, a citizen of El Salvador, wanted to enter the United States to live with his wife and child, also a U.S. citizen. An officer at the U.S. Consulate in San Salvador refused him entry, finding that Asencio-Cordero was a member of the MS-13 gang, partly on the basis of his religious tattoos. Asencio-Cordero denied gang membership.

Under U.S. immigration law, noncitizens don’t have the right to challenge visa denials in court. But Muñoz claimed that the refusal to give her husband a visa infringed what she said was her fundamental right to live with her spouse in the United States, part of the protection of the right to marriage that the court has said is guaranteed under the Constitution.

The court rejected that argument. “A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country,” Justice Amy Coney Barrett wrote for the majority.

Such a right, she said, is not “deeply rooted in this Nation’s history and traditions,” citing a 1997 case that has become the touchstone for determining (or, in the case of abortion, limiting) the scope of constitutional rights not specifically outlined in the text.

You can guess the reason for the liberal justices’ worry here. The first sentence in the dissent, written by Justice Sonia Sotomayor, comes from Obergefell v. Hodges, the 2015 case establishing the right of same-sex couples to marry. That was a 5-4 decision by a far different court; . . . 

The majority could have disposed of this case, Sotomayor argued, simply by declaring that Muñoz had received all the process she was due — an explanation from authorities about why the visa was refused. (Justice Neil M. Gorsuch made the same point, concurring in the outcome, but not joining the majority opinion.)

“That could and should have been the end of it,” Sotomayor said. “Instead, the majority swings for the fences.” Its approach to the constitutional right to marriage, she warned, is inconsistent with the understanding it outlined in Obergefell — and its assurances in Dobbs v. Jackson Women’s Health Organization, its 2022 decision eliminating constitutional protection for abortion rights, that other precedents were not at risk.

The majority in Dobbs disclaimed any interest in revisiting other decisions, including Obergefell, grounded in unenumerated rights. (Justice Clarence Thomas would have gone all the way, undoing decisions establishing protection for married couples to obtain contraceptives, for gay couples to engage in sexual behavior, and for same-sex marriage.)

“Despite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine … in any way’ other entrenched substantive due process rights such as the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails at the first pass,” Sotomayor warned. . . . she intimated there was more going on here. The majority, she said, “makes the same fatal error it made in Dobbs,” requiring “too careful” a description of the claimed “fundamental liberty interest.” This reads like the first salvo in the battle over the scope of unenumerated constitutional rights unleashed by Dobbs.

The majority responded that the dissenters were leaping to unwarranted conclusions. Its basic message to the liberals was that they should chill out. “To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right,” Barrett wrote in a footnote.

So, how fearful should we be about the threat to same-sex marriage? If the question were to come up for the first time today, I doubt the court would reach the same result as in Obergefell and declare a sweeping new constitutional right. At the same time — and, yes, I know how cavalierly they tossed aside precedent in Dobbs — I doubt that even this court is about to upend the national legal landscape again and eliminate the right to marriage equality.

Still, Barrett and her fellow conservative justices are clearly not inclined to any broad reading of the Constitution and its unenumerated rights. As Gorsuch and the dissenters pointed out, they could have ducked the constitutional question and decided Muñoz on narrower grounds. Instead, they opted to reiterate the importance of restricting constitutional protections to only those “deeply rooted in history and tradition.” Was this a signal? An invitation? That the liberal justices are nervous should worry us all.

Sadly, given that several of the right wing majority committed perjury during their confirmation hearings, one cannot trust their supposed assurances now

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Countering the Right's Continued War on LGBT Americans

Nine years ago tomorrow, the U.S. Supreme Court ruling in Obergefell v. Hodges took the right to same sex marriage nationwide. A new Gallup survey found that more than two in three Americans continue to believe that marriage between same-sex couples should be legal (69%), and nearly as many say gay or lesbian relations are morally acceptable (64%). Yet, across the country Republican controlled legislatures are passing anti-LGBT legislation and are trying to erase the existence of LGBT individuals from school curriculums with "don't say gay" laws.  Here in Virginia, had Republicans taken control of the Virginia General Assembly there is little doubt that GOP governor Glenn Youngkin would have quickly turned Virginia into a warmed over version of Florida and censored not only gays but blacks out of school courses. Meanwhile, maddeningly, gay Republicans - many white and privileged - continue to support a party that wants them to disappear. After such successes, how do LGBT individuals and activists turn the tide of increased Christofascist/Republican attacks on LGBT rights, indeed, out very existence.  A column in the New York Times argues that the messaging needs to be expanded in an effort to make more Americans understand that attacks on gays opens the way for even more right wing legislation that will threaten the rights of all, including the availability of contraception.  Here are highlights:

It’s a strange time for gay rights in America. As the country nears the 10th anniversary of the legalization of gay marriage nationwide, support for same-sex unions has risen to 70 percent of the American public. But at the same time, L.G.B.T.Q. people are being targeted in ways not seen since the days of Save Our Children, Anita Bryant’s infamous 1977 campaign against gay rights that depicted gay men as human garbage and pedophiles.

In recent years, Republican-controlled state legislatures have banned drag shows, gender-affirming care for minors and adults, and the teaching of sexual orientation from kindergarten through the third grade, including the passage of Florida’s “Don’t Say Gay” law. Panic about “grooming,” a homophobic slur that exploits people’s worst fears about gays and children, is having a moment.

Even Obergefell v. Hodges, the 2015 Supreme Court ruling that legalized gay marriage, is under attack. In 2020, Justices Samuel Alito and Clarence Thomas cast doubt on the legality of the ruling, which could yet go the same way as Roe v. Wade. The Respect for Marriage Act, passed by Congress in 2022, did not codify the ruling into law and would provide scant protection.

Clearly, marriage equality was not enough to bring full equality to L.G.B.T.Q. Americans. It would be wishful to think it could, perhaps. But the gay marriage campaign was a major missed opportunity to expand L.G.B.T.Q. equality. When compared with its foreign counterparts, the American campaign was notable for one thing: the extraordinary modesty of its framing.

The approach was good enough to make gay marriage the law of the land. Yet by failing to make a more ambitious case for equality across the board, as other countries did, the campaign limited the transformative power of gay marriage and created an opening for today’s backlash.

Inspired by the civil rights movement’s struggle for equality under the law, the campaign — which ran for roughly two decades until the ruling in 2015 — was framed around “rights and benefits.” It spotlighted the rights denied to same-sex couples, including tax deductions, inheritance provisions and hospital visitation privileges.

But the message backfired . . . A different message, centered on “love and commitment,” was introduced late in the campaign to show that same-sex couples wanted marriage for the same reasons heterosexuals do.

Neither messaging, however, made the case for L.G.B.T.Q. equality beyond pleading for opening the institution of marriage to same-sex couples. For the most part, gay marriage activists did not defend the morality of homosexual unions. Nor did they refute the claim by the Christian right that gay marriage was a threat to the family and religious freedom.

To be sure, extending marriage rights to same-sex couples was a major step for American society. But it did not require Americans to question their fundamental assumptions about L.G.B.T.Q. people. And despite its modesty, the campaign didn’t stop backlash nor the sense among conservative activists and lawmakers that attacking L.G.B.T.Q. people is a low-risk proposition.

There were different ways to frame the struggle for gay marriage, as other countries show. In Spain, for example, gay marriage activists waged a crusade for “full citizenship,” emphasizing rights and benefits but also dignity and respect. They also posited gay marriage as moral redemption for historical injustices against homosexuals dating back to the burning of “sodomites” at the stake during the Spanish Inquisition.

This ambitious framing paved the way for a gay marriage law that made Spain in 2005, as The New York Times reported, “the first nation to eliminate all legal distinctions between same-sex and heterosexual unions.” It also prompted a frank debate about the state of sexual minorities in Spanish society and converted Spain, historically a social backwater, into the country most accepting of homosexuality.

Echoes of Spain’s pioneering gay marriage campaign can be found in countries as diverse as Argentina, Canada, Brazil, South Africa and Ireland. In all of them, gay marriage was framed as a moral issue rather than a legal matter.

Of course, we cannot expect what happened abroad to be reproduced at home. In Spain and Brazil, gay activists exploited histories of L.G.B.T.Q. oppression and violence to fashion compelling moral messages. The Spanish campaign unfolded in the midst of a national reckoning with the atrocities of the Spanish Civil War and the Franco dictatorship, which included sending homosexuals to “re-education” camps.

[T]he culture war over gay marriage in countries like Spain, Brazil and Ireland was won with smaller and less seasoned gay rights movements than in the United States and against formidable opponents like the Catholic Church and the evangelical movement.

American gay activists would be wise to recalibrate their activism, shifting from a rights-based approach, with its emphasis on litigation, to one more oriented toward citizenship and dignity. They may also want to embrace a more ambitious and idealistic mind-set, aiming squarely at public persuasion. Modesty has its virtues, of course. But when it comes to struggles for fairness and equality, it pays to go big and aim high.

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Republicans' Plan to Resurrect "Zombie Laws"

In many states and also at the federal level there are numerous so-called "zombie laws" that remain in the state codes and federal legislation although they are currently unenforced because of court rulings that struck down them down. In the context of the LGBT community and as examples, here in Virginia that sodomy law that makes same sex relations a felony is still in the Virginia Code and the Virginia Constitution bans same sex marriage.  Should the right wing extremist majority on the U.S. Supreme Court revisit Lawrence v. Texas and the Obergefell rulings and reverse them as Clarence Thomas stated he would like to do, LGBT Virginians could once again find themselves both recriminalized barred from marriage.  At the federal level, a revived Comstock Act could be used to ban abortion and even contraception. Too many Americans remain sleepwalkers when it comes to understanding just how extreme the Christofascist/Republican agenda has become and that putting Donald Trump back in the White House together with a GOP controlled could result in a rapid unwinding of many rights now taken for granted.  A column at Salon looks at this reality.  Here are excerpts:

Anyone with a passing knowledge of the history of reproductive rights in America has heard of the antediluvian Comstock Act but I doubt most of them ever thought it would actually be back in use in the 21st century. The notorious "anti-vice" law from 1873 banned the shipment of "lewd" written materials, contraceptives and any “instrument, substance, drug, medicine, or thing” for the purpose of abortion, and had not been in force for many decades since the passage of various laws and the recognition of a constitutional right to abortion in 1973's Roe v. Wade Supreme Court decision. Nonetheless, it remained on the books. And leave it to the radicals putting together Project 2025 to exhume it the minute Samuel Alito and company give them the green light.

My Salon colleague Amanda Marcotte wrote about the Comstock Act in depth a few months ago in the wake of the 5th Circuit Court of Appeals Mifepristone ruling (access to which was thankfully affirmed (for now) by the Supreme Court this month.) The original decision relied heavily on the Comstock Act to justify the decision to ban the drug, an issue which was left unresolved by the Supreme Court when it threw out the lawsuit on the basis of standing rather than the merits. So the Comstock Act remains on the books and is now theoretically constitutional since the reversal of Roe v Wade, at least when it comes to contraception and abortion. Other aspects of the law regarding obscenity are still unenforceable as they remain protected under other precedents.

The Comstock Act is what's known as a "zombie law" which is a law that has been neutered by subsequent High Court decisions that have found a constitutional prohibition against enforcing them but remain on the books sometimes for centuries lurking around like the undead (hence the name) waiting for a chance to be reanimated by the Supreme Court overturning one of its own decisions. There are a lot of them as we just saw in several states that had draconian 19th-century laws go into effect when the Court handed down its Dobbs decision.

In Arizona, after Roe was overturned, the conservative state Supreme Court revived a near-total ban on abortion, invoking an 1864 law that only allows abortion to save the mother's life and gave prison time to doctors who perform them. The state legislature went through tremendous gyrations to finally repeal that 1864 law but the status of the state's abortion laws remains in limbo

The Comstock Act is a federal law, however, and it is still in effect and is ripe for the picking by anti-abortion zealots and others who want to further restrict reproductive freedoms, including contraception. From the moment the Dobbs decision came down legal experts and activists recognized the danger it posed with this radical right-wing judiciary and they immediately started to work on repealing it.

Democrats are now introducing legislation to repeal the abortion provisions of the Act with the backing of those major abortion rights groups. (They will apparently leave in some of the obscenity laws on which bans on child pornography are based.)

Obviously, the very pious Christian Nationalist Speaker of the House Mike Johnson will not let this pass. The Comstock Act might have been written by him personally. (This is a man who participated in one of those bizarre purity balls with his daughter, after all. ) So there's no hope of passage this year. But this should be part of the debate going into the election and the Democrats must repeal it the minute they get the chance because we know the Republicans are planning to use it the minute they get theirs. 

There are a lot of zombie laws on the books that are likely to be used by conservative judicial activists in the next few years now that they've secured the right-wing Supreme Court of their dreams. For instance, there are existing, unenforced laws against adultery, atheism and sodomy which could easily be reanimated under some of the right's current crusades. Discriminatory housing covenants and outdated draconian drug laws could rise from the dead as well.

They are setting up test cases all over the country with an eye toward overturning precedents to make that happen. Just this week Louisiana passed a new law requiring that all schools display the Ten Commandments in every classroom (using a large font!) They hope to get it to the Supreme Court which has shown every inclination to destroy the separation of church and state. Any zombies from the 1950s will immediately go back into effect if they uphold this law as constitutional.

Democrats in state legislatures and at the national level would be wise to survey all the laws and repeal these dead ones wherever they can as soon as possible. If they don't, there's every chance the right's various culture crusades will end up bringing them back to life.

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Judge Ailleen Cannon Is Unfit for the Task

Those appointed to the federal bench by Donald Trump were largely selected for their right wing ideology rather than their competence and ability. A significant percentage of them were deemed unfit by the American Bar Association, which while not always free from fault, does focus on a judicial nominee's experience and competence.  Judge Ailleen Cannon who disastrously ended up randomly assigned to the Trump classified documents case - and who remained on the case even after senior judges (one a Republican appointee) urged her to recuse herself from the case - is demonstrating writ large why many Trump appointees should never been confirmed. Even after being lambasted by the 11th Circuit Court of Appeals in extremely harsh language, Cannon is continuing to favor Trump and is wasting time on farcical arguments by Trump's attorneys and making her court room look like a clown show - a clown show doing all it can to protect Trump from accountability in what many legal experts says should have been an open and shut case.  Sadly, Cannon is not the only unfit federal judge appointed by Trump (his Supreme Court appointees perjured themselves during their confirmation hearings), but she is certainly putting a spotlight on the consequences of appointing incompetence individuals to life time appointments to the federal courts.  A second Trump term could see more such appointees only too willing to turn the courts into kangaroo courts. A piece in The Atlantic looks at Cannon's unfitness and her efforts to protect Trump in ways none of could ever hope for.  Here are highlights:

One year ago, when former President Donald Trump was indicted on charges related to his hoarding of classified documents, the case was randomly assigned to Aileen Cannon, a federal judge for the Southern District of Florida.

Cannon’s selection immediately stirred up worries. She had little trial experience, having been appointed to the bench at just 39. She was an appointee of Trump himself. And she had already raised concerns with her rulings in favor of Trump in a precursor to the case, which were later reversed by a sharply critical appeals court.

[A]fter a year of action—and, perhaps more important, inaction—from Cannon, it seems that many of the worst fears about her were not just well founded but understated: Her track record in the case has been extremely favorable to Trump, to a degree that undermines any faith in her ability to adjudicate it fairly going forward.

The latest astonishing development is a New York Times report yesterday that two other federal judges in Florida’s Southern District sought to persuade her to step aside from the case and let another jurist take it. One colleague argued to Cannon that it would be better for a judge in Miami, rather than her satellite Fort Pierce courthouse, to deal with the case, in part because the Miami courthouse has a facility for sensitive documents, the paper reported. When Cannon demurred, the chief judge of the district called her and argued that her reversed decision earlier meant that her having this case would look bad. She again declined to hand it off.

Whether Cannon’s colleagues were concerned about inexperience or bias is not clear from the reporting, but what is striking is that they seem to have reached the same conclusion that many outsiders did at the time and later: Cannon has no business presiding over the case.

Comparing Trump’s different indictments is dicey, and two other cases against Trump, which accuse him of subverting American democracy itself, have overshadowed the documents case. But in this case, Trump stands accused of something very dangerous—extremely careless handling of the nation’s most sensitive secrets. He allegedly tried extensively to hide documents from the government, even after a subpoena. Nor does much doubt exist about whether he had the material, because FBI agents recovered it in a search of his Mar-a-Lago residence in August 2022. No felony case against a former president is simple, but the basic outlines of this one are straightforward and quite serious.

After the documents were recovered, Cannon ruled that prosecutors couldn’t review the files until a special master had filtered them—a ruling that would have benefited Trump by freezing the investigation and potentially discarding evidence. “This would seem to me to be a genuinely unprecedented decision by a judge,” Paul Rosenzweig, a former federal prosecutor . . . an appeals court overturned Cannon, saying her approach “would violate bedrock separation-of-powers limitations.”

The investigation continued, and an indictment followed, but Special Counsel Jack Smith had a stroke of bad luck when Cannon randomly drew the assignment. That’s turned into a bad-luck streak, as Cannon has repeatedly moved back deadlines. The trial was once scheduled to begin in May; now no tentative date even exists. She’s also ruled against prosecutors again and again.

In May, she delayed a deadline for major filings. Later that month, after Trump falsely claimed that the FBI had planned to assassinate him in the Mar-a-Lago search, prosecutors asked that he be barred from making statements about law enforcement. Instead, Cannon threatened to sanction them for not first conferring with defense lawyers. And earlier this month, she removed a paragraph from the indictment, saying it was not connected to any specific charge against Trump.

Today, she will hear arguments over whether Smith’s appointment as special counsel was unconstitutional, a strain of argument that other courts have long rejected. She has also agreed to hear arguments from third parties on the question, which is highly unusual in trial courts. Even when Cannon has ultimately rejected defense claims, she has first held hearings on matters that few judges are willing to entertain.

The case is crawling forward at the same time that the Supreme Court has been dilatory in ruling on Trump’s argument that he should be immune to prosecution for acts taken as president—a claim that could upend his federal indictment for subverting the 2020 election. And just as no mechanism exists to speed up the justices, prosecutors have little recourse with Cannon. They don’t have any of the hard evidence that would justify a recusal, and though they might be able to successfully appeal, that takes time . . . . voters seem unlikely to get a ruling before they cast ballots this fall; the question now is whether Trump wins and is able to have the case against him dismissed.

If Smith’s filings show a rising irritation, outsiders who have no need to be polite have not been. “The fact these motions are even being entertained with a hearing is itself ridiculous,” the national-security lawyer Bradley Moss told CNN. “The magnitude of the legal mistakes that are happening is weird. They’re always in the same direction, right? The legal mistakes are always Trump-favorable,” the University of Texas law professor Lee Kovarsky told New York. “It’s clear that she is going in a ridiculous direction,” Nancy Gertner, a retired federal judge, told Politico. The attorneys Dennis Aftergut and Laurence Tribe wrote in Slate that Cannon “is quietly sabotaging” the case. “Judge Cannon is proving that she is not fit for this moment,” the former CIA attorney Brian Greer wrote in the Times.

What affirms their concerns is that Cannon’s colleagues—people who intimately know the court, the law, and the judge herself—evidently agreed.

She needs to be removed from the case and better yet from the federal bench entirely.

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