The Supreme Court Is Headed Back to the 19th Century

If one wonders where America is likely headed with a Supreme Court firmly controlled by a reactionary majority, a very lengthy piece in The Atlantic suggests that we are headed back to Court decisions like those in the 19th Century which protected the powerful, especially corporations, and set the frame work for the Jim Crow laws.  Racial minorities and the LGBT community in particular should be very fearful if the lessons of history show us anything.  Through it all, a pretense of a support for "freedom" will be maintained even as discrimination is maintained.  The Christofascists and white supremacists of Trump and the GOP's base will be thrilled since they will be allowed to victimize and discriminate against others. The rest of the GOP supporters will be complicit in the wrongs done and will need to be held accountable when the day of reckoning does finally come after incalculable harm has been done.  Here are article excerpts (take the time to read the entire article):

When the Louisiana State Militia finally arrived at the Colfax courthouse on April 15, 1873, all it could do was bury the bodies. Two days earlier, a large force of white supremacists had taken control of the courthouse from the mostly black faction protecting it. J. R. Beckwith, the U.S. attorney for New Orleans, told Congress that in the aftermath the ground was “strewn with dead negroes,” their bodies plundered by whites who had come to watch the bloodshed. The dead remained “unburied and mutilated,” Beckwith said, until federal troops arrived days later to shovel them into a mass grave.

“Not a single negro had been killed until all of them had surrendered to the whites who were fighting with them,” The New York Times reported at the time, “when over 100 of the unfortunate negroes were shot down in cold blood.”

President Ulysses S. Grant called the Colfax massacre a “butchery” that “in bloodthirstiness and barbarity is hardly surpassed by any acts of savage warfare.” . . . Many white Southerners saw it differently. Robert Hunter, the editor of The Caucasian, a Louisiana newspaper, told Congress in 1875 that some of his own staffers had participated in the massacre. “I approved it, as most of our people did,” Hunter testified. “Had not the Colfax affair ended as it did, not less than a thousand niggers would have been killed later.”

Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. . . . And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote.

This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations.

Grant was enraged that “insuperable obstructions were thrown in the way of punishing these murderers … and the so-called conservative papers of the State not only justified the massacre, but denounced as federal tyranny and despotism the attempt of the United States officers to bring them to justice.” . . . By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.

The justices . . . carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.

The Conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.

Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

In doing so, he [Roberts] embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.

Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.

The lesson of the post-Reconstruction Supreme Court is that a determined Court majority can prove stubbornly resistant to short-term swings of political fortune. Even if Democrats win the next election cycle, and the one after that, an enduring conservative majority on the Supreme Court will have the power to shatter any hard-won liberal legislative victory on the anvil of judicial review. It will be able to reverse decades-old precedents that secure fundamental rights. It will further entrench the rules of a society in which justice skews toward the wealthy, and the lives of those without means can be destroyed by a chance encounter with law enforcement. It will do all these things and more in the name of a purely theoretical freedom, which most Americans will never be able to afford to experience.

The Supreme Court’s moments of majesty, such as Brown v. Board of Education, which outlawed segregated schools; and Loving v. Virginia, which struck down anti-miscegenation laws; and even Obergefell v. Hodges, which legalized same-sex marriage, are few and far between. For most of its existence, the high court has been committed less to upholding the rule of law or the Constitution than to preserving its own legitimacy, unwilling to shield the powerless from the mob unless convinced that it has the political cover to do so. Like many things in America, the ideal rarely resembles the execution.

The Colfax massacre is most often remembered as the single worst act of violence during Reconstruction, but it also set a template for the high court’s approach to the bloody restoration of white rule in the South. The men who carried out the massacre had popular support among Southern whites—according to the historian Ted Tunnell, “nearly half the white males” in New Orleans alone belonged to terrorist groups such as the White League, which was willing to use violence to secure political gains or prevent black Americans from voting. With Cruikshank, the justices sent the message that if white Southerners wished to overthrow their state government at gunpoint, the Supreme Court would bar efforts to prosecute them.

The Supreme Court’s growing hostility to federal efforts to protect black rights would come to its logical conclusion in the 1896 case of Plessy v. Ferguson, which upheld segregation in public transportation. Justice Henry Billings Brown, a Rutherford B. Hayes appointee, wrote that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Separate was not inherently unequal, he insisted. . . . As the historian Ibram X. Kendi has written, “Brown relied on racist ideas to support a policy that was clearly discriminatory in intent. It was his job to obscure those intentions.”

In 1898, in Williams v. Mississippi, the William McKinley–appointed Justice Joseph McKenna would write for a unanimous Court that literacy tests and grandfather clauses, two cornerstones of Jim Crow–era disenfranchisement, were constitutional because they also affected some whites. That the devices were consciously used to bar black voters from the polls was of no significance—the Court would avert its eyes and plug its ears.

“The Court increasingly used the due process clause of the Fourteenth Amendment to protect corporations from state regulation rather than the civil rights of persons.” In case after case, “the U.S. Supreme Court had come to embrace the logic of corporations,” Painter wrote in Standing at Armageddon, her history of the Gilded Age. “These decisions outlawed virtually any attempt by states to limit maximum hours of work, of unions to strike, and of the federal government to curb or regulate monopolies or to curb the accumulation of vast fortunes.” . . . The redistribution of civil rights from American citizens to American corporations helped create the greatest disparities in wealth in the nation’s history, until the present day.

“The Supreme Court contributed to the inequality of the Gilded Age by reinforcing and encouraging racial segregation. By refusing to read the Fourteenth Amendment broadly for minorities, they allowed a system of racial apartheid to go up in the South,” Winkler said. “On the other side, the corporate rulings enhanced inequality by entrenching the power of industrialists, financiers, and wealthy elites at the expense of immigrants and the working class."

Chief Justice Roberts upheld the [Trump muslim] ban, writing that it was “facially neutral” and that “the text says nothing about religion.” His decision echoed the logic of the Supreme Court’s rulings in Redemption-era cases such as Cruikshank and Williams: that as long as the legal language itself did not explicitly mention the group being discriminated against, intent and effect were irrelevant. The implications are larger than one religion: As with the Redemption Court, which gave the Redeemers a blueprint for creating a segregated society through laws that “do not on their face discriminate between the races,” Roberts and the conservative majority have indicated that Trump’s bigotries can be made policy as long as they appear “facially neutral.”

With Anthony Kennedy’s retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an anti-discrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict. 

There is hope for the Democratic Party in its base. The black and brown workers intimately acquainted with the two-faced nature of American liberty, the rebellious teachers whose surprise strikes brought red-state politicians to heel, the young leftists whose cold-eyed understanding of power mirrors that of their Republican opponents, and the feminists who flooded the streets after Trump’s inauguration forced the nation to reckon with the ascension of predatory men to the highest levels of culture, clergy, and state. But they will have to contend with a party establishment that is so divorced from the lives of those the Trump administration has put in peril that it cannot comprehend what will be required to defeat Trumpism. Democracy is a fight, and the Democratic Party’s leadership has yet to show that it can even wrap its hands.

Be very, very afraid.  America could be poised to revisit some of its ugliest history.

Trump, Joe Arpaio and the End of Constitutional Rights

The Roman Republic did not end with one single act.  Rather numerous acts and the eventual seizure of power by Octavian Caesar - renamed Augustus - while maintaining the outward trappings of the Republic, in particular the Roman Senate led to the empire and imperial power.  Along the way the rule of law ended and some became above the law.  In pardoning Joe Arpaio, Der Trumpenführer has signaled that his supporters can trample on the constitutional rights of others with impunity.  John McCain issued a statement that sums up the danger well:

“No one is above the law and the individuals entrusted with the privilege of being sworn law officers should always seek to be beyond reproach in their commitment to fairly enforcing the laws they swore to uphold. Mr. Arpaio was found guilty of criminal contempt for continuing to illegally profile Latinos living in Arizona based on their perceived immigration status in violation of a judge’s orders. The President has the authority to make this pardon, but doing so at this time undermines his claim for the respect of rule of law as Mr. Arpaio has shown no remorse for his actions.”

The main editorial of the New York Times today follows up on this theme and the danger that Trump's action signals.  In the world of Trump and his racist, homophobic, anti-immigrant base, some people have rights and others don't, namely those who are black, Hispanic, non-Christian, and non-heterosexual.  As noted in numerous post, in the case of LGBT Americans, Trump is waging an unrelenting war against us.  It will likely only get worse if the trend is allowed to continue.  Here are editorial excerpts: 

It would be difficult for President Trump, who has insulted judges and tried to interfere with a federal investigation, to show much more disrespect for the rule of law. But if he makes good on his implicit vow to pardon Joe Arpaio, the disgraced former sheriff of Maricopa County, Ariz., Mr. Trump would be scorning the Constitution itself.

Mr. Arpaio, an anti-immigrant hard-liner who served 24 years in office before voters tossed him out last November, was convicted in July of criminal contempt of court for disregarding a federal judge’s orders to stop detaining people based solely on the suspicion that they were in the country illegally.

The Constitution gives the president nearly unlimited power to grant clemency to people convicted of federal offenses, so Mr. Trump can pardon Mr. Arpaio. But Mr. Arpaio was an elected official who defied a federal court’s order that he stop violating people’s constitutional rights. He was found in contempt of that court. By pardoning him, Mr. Trump would show his contempt for the American court system and its only means of enforcing the law, since he would be sending a message to other officials that they may flout court orders also.

Mr. Arpaio could not be less deserving of mercy. In addition to the dragnets of Hispanic-looking people that ultimately led to his contempt conviction, he racked up a record of harassment, neglect, mistreatment and other flagrant abuses of office that should have ended his career years ago.

Both men [Trump and Arpaio] built their brands by exploiting racial resentments of white Americans. While Mr. Trump was beginning his revanchist run for the White House on the backs of Mexican “rapists,” Mr. Arpaio was terrorizing brown-skinned people across southern Arizona, sweeping them up in “saturation patrols” and holding them in what he referred to as a “concentration camp” for months at a time.

It was this behavior that a federal judge in 2011 found to be unconstitutional and ordered Mr. Arpaio to stop. He refused, placing himself above the law and the Constitution that he had sworn to uphold.

[A] grant of mercy from Mr. Trump would also go against longstanding Justice Department policy, which calls for a waiting period of at least five years before the consideration of a pardon application and some expression of regret or remorse by the applicant. Mr. Arpaio shows no sign of remorse; to the contrary, he sees himself as the victim. “If they can go after me, they can go after anyone in this country,” he told Fox News on Wednesday. He’s right — in a nation based on the rule of law, anyone who ignores a court order, or otherwise breaks the law, may be prosecuted and convicted.

Mr. Arpaio has always represented what Mr. Trump aspires to be: a thuggish autocrat who enforces the law as he pleases, without accountability or personal consequence.

  Frighteningly, we are seeing the death of the rule of law before our eyes.  Be very afraid.

Supreme Court Strikes Down All Gay Marriage Bans

It is a very emotional day - in a 5-4 ruling, with Justice Anthony Kennedy writing the opinion, the United States Supreme Court ruled today that the Fourteenth Amendment of the United States Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.  It is a dream come true for same sex couples who until just 12 years ago had to fear felony prosecutions in 13 states (including Virginia) for same sex relations. It is also a nightmare come true for Christofascists who see their ability to inject their toxic and ignorance worshiping beliefs crumbling before their eyes.    As a bit of irony, its was on June 26, 2013, that the ruling in Lawrence v. Texas struck down the remaining sodomy statutes. Then, on June 26, 2013 the ruling in United States v. Windsor struck down the Federal Defense of Marriage Act as applicable to the federal government.  Here are some initial highlights from the ruling (see the opinion here):

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

With the exception of the opinion here under review and one other,  . . . . the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution.

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

[T]he Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

[A]nalysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. . . . As this Court held in Lawrence, same-sex couples havethe same right as opposite-sex couples to enjoy intimate association.

Under the laws of the several States, some of marriage’s protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” . . . As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples.

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents,relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

[W]hile the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority;adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it,exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes en- acted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their person hood to deny them this right. 

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.

The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

More reflections will follow in subsequent posts - as will thoughts on the spittle flecked hysteria that will no doubt be sweeping through Christofascists circles.

House Republicans Seek to Revoke Birth Right Citizenship

Some in the GOP ranks seemingly never cease in their quest to attack immigrants and find ways to deport Hispanics in particular.  How this will help any GOP presidential candidate win votes outside of the shrinking angry white base of party is mind numbing.  But then again, much of the agenda of today's GOP is mind numbing and down right ugly.  The latest target of GOP hate: removing a provision of the 14th Amendment that grants citizenship to anyone born on American soil. One would have to be blind not to see that the motivation behind the effort is to revoke the citizenship of children of undocumented immigrants born in America which furthers the white supremacist demands of much of the GOP base.  The Washington Post looks at the effort.  Here are highlights:

The Civil War era’s 14th Amendment, granting automatic citizenship to any baby born on American soil, is a proud achievement of the Party of Lincoln. But now House Republicans are talking about abolishing birthright citizenship. 

A House Judiciary subcommittee took up the question Wednesday afternoon, prompted by legislation sponsored by Rep. Steve King (R-Iowa) and 22 other lawmakers that, after nearly 150 years, would end automatic citizenship. 

The 14th Amendment, King told the panel, “did not contemplate that anyone who would sneak into the United States and have a baby would have automatic citizenship conferred on them.” Added King, “I’d suggest it’s our job here in this Congress to decide who will be citizens, not someone in a foreign country that can sneak into the United States and have a baby and then go home with the birth certificate.”

It’s no small task to undo a principle, enshrined in the Constitution and upheld by the Supreme Court, that defines the United States as a nation of immigrants. It’s particularly audacious that House Republicans would undo a century and a half of precedent without amending the Constitution but merely by passing a law to reinterpret the 14th Amendment’s wording in a way that will stop the scourge of “anchor babies” and “birth tourism.”

Judiciary Committee Republicans . . . .  had to search far and wide for people who would take this view, because they ended up with a bizarre witness: an octogenarian professor from the University of Texas named Lino Graglia.

This would be the Lino Graglia who caused a furor in 1997 when he said that Latinos and African Americans are “not academically competitive with whites” and come from a “culture that seems not to encourage achievement.” He also said at the time that “I don’t know that it’s good for whites to be with the lower classes.”

And this is the very same Lino Graglia whose nomination for a federal judgeship in the 1980s fell apart amid allegations that he had urged Austin residents to defy a court-ordered busing plan and had used the racist word “pickaninny” in the classroom.

Abolishing automatic citizenship for babies born on American soil, and having Graglia make the case, probably won’t help Republicans overcome their problems with minorities, who are gradually becoming the majority.

Democrats, by happenstance, presented a sharp contrast to the GOP effort Wednesday: Sens. Elizabeth Warren (Mass.) and Sherrod Brown (Ohio) and others met at Washington’s Carnegie Library with a coalition including immigration and civil rights advocates to launch a new jobs campaign, “Putting Families First.”

Rep. Luis Gutierrez (D-Ill.) read aloud some of Graglia’s other comments about minorities. . . . . . The congressman asked that Graglia’s past statements be entered into the record. But Rep. Lamar Smith (R-Tex.) complained that the line of inquiry was “a non-germane subject for this hearing.”

The GOP seems hell bent to continue on a path of slow political suicide. 

Congressional GOP Urges SCOTUS to Uphold Marriage Bans

Proving yet again that they are the enemies of LGBT equality - and total political whores to the Christofascists - Congressional Republicans of both the Senate and House of Representatives filed a brief with the U. S. Supreme Court ("SCOTUS") on Friday urging the Court to uphold state bans on same sex marriage. Among the arguments put forth are that (i) defining marriage should be left to mob majority rule, (ii) the issue is outside the scope of the Equal Protection Clause, (iii) same sex marriage is "too new" and that the Court should use restraint, and (iv) states should be free to refuse to recognize out of state marriages just as they do where one or both of the spouses are under the minimum age.  Among the local members of Congress signing the brief was J. Randy Forbes who ought to resign his seat and become a televangelist or work for a hate group like FRC or AFA.  Here are excerpts from the Washington Blade:

A total of 57 congressional Republicans — including Senate Majority Leader Mitch McConnell (R-Ky.) and Republican presidential candidate Ted Cruz — joined forces in a bicameral brief filed on Friday urging the U.S. Supreme Court to uphold state bans on same-sex marriage.

The 32-page brief — signed by six U.S. senators and 51 U.S. House members — makes the case that state prohibitions on same-sex marriage are constitutional on the basis of principles of federalism, judicial restraint and states’ traditional sovereignty over domestic relations.

At one point, congressional Republicans invoke the U.S. Supreme Court’s decision in Roe v. Wade, saying the nationwide ruling on abortion was “widely criticized” for departing from incremental change.

The six senators who signed the brief, in addition to McConnell and Cruz, are Sen. Steve Daines (R-Mont.), James Lankford (R-Okla.), James Inhofe (R-Okla.) and Tim Scott (R-S.C.). In February, McConnell was tight-lipped when asked by the Washington Blade about his hopes for the marriages cases and non-committal about signing a friend-of-the-court brief.

Among the 51 House members who signed the brief are lawmakers who have a reputation for holding anti-LGBT views, including Reps. J. Randy Forbes (R-Va.), Virginia Foxx (R-NC), Trent Franks (R-Ariz.), Louie Gohmert (R-Texas), Vicky Hartzler (R-Mo.), Tim Huelskamp (R-Kansas), Jim Jordan (R-Ohio), Steve King (R-Iowa), Raul Labrador (R-Idaho), Randy Weber (R-Texas) and Pete Sessions (R-Texas).

Not listed is House Speaker John Boehner (R-Ohio).

Standing in contrast to this brief is a filing from 211 congressional Democrats — 167 House members and 44 senators — calling on the Supreme Court to find a constitutional right for same-sex couples to marry. Even though the Democrats are at their smallest minority ever in Congress since the early 20th century, the number of lawmakers on the Democrats’ brief is nearly four times the number on the Republican brief.

Federal Court Strikes Down Alabama Gay Marriage Ban

Alabama Capitol

Just as it took the federal courts to strike down Jim Crow laws in Alabama, so now we see the federal courts striking down Alabama's animus inspired ban on same sex marriage.  Given the reality that Alabama is now more reactionary than it was when I lived there over 30 years ago, it is a welcome event to see a federal judge - a George W. Bush appointee no less - strike down a constitutional ban that enshrined religious based discrimination into the Alabama Constitution.  Here are highlights from the Washington Blade:

A federal judge in Alabama has become the latest to strike down a state ban on same-sex marriage, ruling against the Yellowhammer State’s prohibition on gay nuptials on the basis that it violates the Fourteenth Amendment.

In a 10-page decision on Friday, U.S. District Judge Callie V.S. Granade, an appointee of George W. Bush, issued summary judgement in favor of a plaintiff same-sex couple, finding Alabama marriage laws violate the couple’s right to due process and equal protection under the U.S. Constitution.

“There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples,” Granade writes. “In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.”

Granade continues Alabama’s ban on same-sex marriage is unconstitutional for the same reason the U.S. Supreme Court ruled against the Defense of Marriage Act in 2013.

“If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children,” Granade writes. “Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents. Yet Alabama’s Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples.”

No stay is included in the decision, which enjoins the state from enforcing Alabama’s laws prohibiting same-sex marriage in their entirety. It seems same-sex couples can begin to wed in the state as soon as clerk’s offices are open for business. The decision makes Alabama the 37th state in the country to have same-sex marriage.

 
I'm sure the gay haters are foaming at the mouth this morning all across Alabama.

Supreme Court to Take 6th Circuit Marriage Appeal

Yesterday the U.S. Supreme Court agreed to hear the appeal of the ruling of the U.S. Court of Appeals for the Sixth Circuit which upheld the same sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee and tried to depict such bans as "a benign, even admirable, initiative by “people of good faith,” endowed with a “Burkean sense of caution,” to validate a “long-existing, widely held social norm” rather than animus inspired acts to permanently denigrate gays and lesbians.  Indeed, under the reasoning of the Sixth Circuit's ruling, slavery and bans on interracial marriage ought to still be valid.  A final ruling should be handed down by late June.  This action comes after the Court refused to take the appeal from the Fourth Circuit last October which had the effect of making gay marriage legal in Virginia and the other states in the Fourth Circuit. SCOTUS Blog has details on the Court's action.  Here are excerpts:

Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage.   The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.  A total of two-and-a-half hours was allocated for the hearings, likely in the April sitting.  A final ruling is expected by early next summer, probably in late June.

The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans.  As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but all are under court challenge.

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.
The Court told the lawyers for same-sex couples to file their written briefs on the merits by February 27, and the lawyers for the states to file by March 27.  Reply briefs by the couples’ lawyers are due on April 17.

The Court is scheduled to hold its final session of oral arguments from April 20 through 29, so the same-sex marriage cases will be scheduled during that time.  The order issued on Friday did not set that date; that will be done later.

The focus of the Court’s review will be a decision issued in early November by the U.S. Court of Appeals for the Sixth Circuit.  That decision, breaking ranks with most other courts, upheld bans on marriage or marriage-recognition in Kentucky, Michigan, Ohio, and Tennessee.

While one never knows what the Supreme Court will do, it would seem unlikely for the Court to uphold state bans after allowing same sex marriage to extend to 36 states, with legalization in nearly half of those states coming from the Court's refusal to hear appeals where bans were struck down.  The outlier ruling of the Sixth Circuit has forced toe Supreme Court to have to act.

Locally, it has been amazing to see even formerly very conservative private clubs now accept married same sex couples as members.  The husband and I belong to such club and friends have recently joined a local conservative country club.

Gay Marriage: The Tide Has Turned, But Is the Supreme Court Listen?

With the constitutionality of gay marriage bans headed back to the U.S. Supreme Court in the wake of the 6th Circuit Court of Appeals incredibly wrong ruling - based, as previously noted on arguments made by a white supremacy group - some believe that the outcome will inevitably be than same sex marriage becomes legal nationwide, Given the fact that the Court turned down appeals from Virginia and other states and gave de facto affirmation of the Court of Appeals rulings, such reasoning is easy to understand.  Yet there remain far right extremists on the Court who would not hesitate to role back the advance of marriage equality.  A post in the Huffington Post looks at the issue and whether or not a majority on the Court realize that any attempt to reverse the tide will go against public opinion.  Here are highlights:

The Supreme Court may soon be pushed, however reluctantly, to address the question of whether there's a constitutional right to same-sex marriage. So far, it has punted on the issue. But last week, gay and lesbian couples filed petitions asking the court to rule on the matter now that federal appeals courts have issued contradictory decisions. They hope the court will hear their case before the current session ends in June.

On October 6, the Supreme Court rejected petitions seeking to appeal lower court rulings that struck down bans on same-sex marriage in Wisconsin, Utah, Indiana, Oklahoma, and Virginia. As a result, same-sex marriage is now legal in 33 states as well as the District of Columbia.

At the time, the various federal appeals courts saw the issue the same way, knocking down many state bans on gay marriage. But on November 6, the Court of Appeals for the Sixth Circuit, based in Cincinnati, upheld state bans on same-sex marriage in Ohio, Tennessee, Michigan and Kentucky.

Splits among circuit courts are one of the factors that the Supreme Court considers before taking on a case. Now that different appeals courts have disagreed on the constitutionality of same sex marriage, the Supreme Court may have a hard time avoiding a direct showdown on the issue.

So far, the Supreme Court has been much more cautious about same-sex marriage than it was about inter-racial marriage a half-century ago. . . . They stopped short of proclaiming same-sex marriage a basic right. They left it to the states to determine whether gay Americans have the same right to marry as their straight counterparts.

Compare this to the Supreme Court's bold 1967 ruling in Loving v. Virginia, which knocked down state anti-miscegenation laws. At the time, "states' rights" was the justification used by Southern racists to defend Jim Crow laws, including school segregation, racial discrimination in restaurants and buses, severe limits on voting by African Americans, and bans on interracial marriage. Back then, the Supreme Court was ahead of public opinion regarding interracial marriage. Now it is behind public opinion when it comes to same-sex marriage. It is hard to see how the legal case for same-sex marriage is any different, but the Supreme Court chose to advocate states' rights over equal rights.

Although no one can be sure whether or how the Supreme Court justices will decide, the American public has already made up its mind. Public support for gay marriage has hit a new high. According to a Washington Post/ABC News poll, conducted in June this year, 56 percent of Americans believe it should be legal for gay and lesbian couples to marry . . .

Moreover, support for gay marriage is much higher among younger Americans, indicating that the future belongs to the advocates, not the opponents, of same-sex marriage. Soon, conservative politicians and groups will no longer be able to use gay marriage as a "wedge" issue to stir controversy and win elections. The days of gay-bashing as a political strategy are numbered.

[W]hen the U.S. Supreme Court, in Loving v. Virginia, knocked down state anti-miscegenation laws everywhere, 16 states still had such laws on the books and 72 percent of the public still opposed interracial marriages. 

Warren penned the opinion for the court, noting that the Virginia law endorsed the doctrine of white supremacy. He wrote:

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.. . . To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Reread Chief Justice Warren's words. Then substitute same-sex marriage for interracial marriage and see if his views are any less compelling. Most Americans would now agree that to deny gays and lesbians the right to marry is, as Warren put it,"directly subversive of the principle of equality at the heart of the Fourteenth Amendment." Today's version of anti-miscegenation laws are those that prohibit same-sex marriage.

Greenville News: Drop Fight Against Gay Marriage

In a desperate attempt to prostitute themselves to the Christofascists elements of the Republican Party base, Republican elected officials are continuing opposition to same sex marriage despite the reality that the battle has been lost.  Among these willing political whores are South Carolina Governor Nikki Haley and Attorney General Alan Wilson who refuse to concede that the 4th Circuit ruling in Bostic is binding precedent and that any appeal from the ruling of U.S. District Judge Richard Gergel in Charleston is futile and will only serve to waste taxpayer funds.  The Greenville News has come out with a main page editorial calling on the Governor and Attorney General to stop their continued opposition.  Here are editorial excerpts:

South Carolina’s constitutional ban on gay marriage fell last week when U.S. District Judge Richard Gergel of Charleston ruled that the U.S. Constitution provides same-sex couples with the right to marry. Gergel’s decision was as expected as it is firmly grounded in constitutional law as it has evolved.

A continued legal fight by S.C. Attorney General Alan Wilson will be futile and expensive.  Furthermore it will encourage false hope among state residents who don’t want the terms of marriage redefined, while it also will continue to deny gay couples the marriage license they clearly want and are allowed in 33 other states.

The other states in the 4th Circuit Court of Appeals moved quickly to accept the October decision authored by 4th Circuit Judge Henry Floyd in a case involving a legal challenge to Virginia’s ban on gay marriage.

The 4th Circuit ruling was written by Judge Floyd, a South Carolinian. The judges found that Virginia’s ban on gay marriage violated the Due Process and Equal Protection Clauses of the 14th Amendment by preventing same-sex couples from marrying and refusing to recognize same-sex marriages from other states.

The final paragraph of the ruling is worth repeating:

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection under the law. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

The 4th Circuit’s ruling flowed naturally from legal precedent that has followed fundamental changes in our society.
[T]hese court decisions and state laws affect only civil marriages. Religious institutions still enjoy the right to determine who they will marry and what type of marriage they will recognize. 

[I]f the Constitution protects the rights of gay couples legally married in some states, that same Constitution surely must allow for nationwide recognition of gay marriage.The U.S. Supreme Court has decided not to consider challenges to rulings from the 4th Circuit and two other circuits. A different ruling in the 6th Circuit ensures the Supreme Court will have to address this issue again, but the result seems inevitable. A right to gay marriage has been recognized in many states in the country, and that right cannot now be taken away. 

South Carolina leaders, including Wilson and Gov. Nikki Haley, have an opportunity to provide leadership at this time by helping the people who elected them understand that this battle against gay marriage is over. And it is.