The Future of Gay Rights Is Extremely Fragile

June is Pride month across America and in many other parts of the globe.  It is a time to reflect on and celebrate lesbian, gay, bisexual, and transgender history - which has so often been hidden from view by the dominant straight, white society, if not openly oppressed. Given the current political climate under the Trump/Pence regime which seeks to grant extraordinary rights to Christian extremists, Pride month and Pride events remain important, perhaps as important as every.   Here in Virginia, LGBT citizens continue to lack any state law employment non-discrimination and public accommodation protections thanks to Republicans in the General Assembly. The recent ruling by the U.S. Supreme Court in the Masterpiece Cakeshop case which allowed a “Christian” baker to cite alleged religious belief as a basis to refuse service to a same sex couple planning their wedding is being construed by many on the far right as a license to discriminate against LGBT citizens (and even non-white citizens).  Sadly, things are likely to get far worse if Der Trumpenführer and the GOP controlled U.S. Senate place a right wing ideologue on the Supreme Court to replace retiring Justice Kennedy who increasingly seems to have bought by Trump (see this Vanity Fair piece).  A piece in the New York Times by two law professors looks at the distressing days ahead.  Here are excerpts: 

In 30 years on the Supreme Court — the past 13 as the swing justice — Justice Anthony Kennedy has been the decisive vote in cases on issues ranging from abortion to affirmative action. Yet his legacy will be defined primarily by his opinions in the area of gay rights, where he wrote the major majority opinions expansively reading the Constitution to protect gay Americans.

His gay-rights decisions will now face a hostile majority on the court, which is likely to overturn, cut back or nullify at least some of them. And he has made it surprisingly easy.

Justice Kennedy’s gay-rights legacy, however, is at risk and not just because of the slim vote margins that produced it. Unfortunately that margin is almost certainly gone already.

When President Trump’s second nominee takes his seat at the court, probably this fall, a majority of the court is likely to disagree with Justice Kennedy’s expansions of L.G.B.T. rights. And even without overturning his signature cases, Justice Kennedy’s decisions can be narrowed and their implications minimized.

And those who will want to cabin his legacy will be aided by the justice’s own decision-making style. His opinions often hedged, refusing to establish strong rules to protect gays and lesbians going forward.

Most important, he balked at declaring that laws discriminating on the basis of sexual orientation should be, like those discriminating on the basis of race or gender, presumed suspect by the courts. Much of constitutional law depends on the “levels of scrutiny.” If a law burdens a fundamental right or discriminates on the basis of race or sex, courts take a hard look to make sure the government has a really good reason for the law. In the marriage cases, a fair analysis should have depended less on “the universal fear” of loneliness and more on whether the bans were subject to rational-basis review or something stricter. If rational, the bans should survive. If strict, they would fail. Both sides petitioned the court to rule on that question, but Justice Kennedy could not bring himself to decide it.

These doctrinal points Justice Kennedy neglected are not mere niceties. Lower courts need such guidance to determine whether laws biased against L.G.B.T. people should be upheld. Indeed, lower courts have previously read Justice Kennedy’s opaque language in Lawrence to allow states to ban gay adoption and permit governments to fire employees for engaging in private, consensual sexual behavior. The language in the marriage cases could allow similar mistakes.

If Justice Gorsuch’s narrow view of Obergefell prevails, gays and lesbians may one day enjoy a right to marry without marriage equality.

Justice Kennedy left unanswered one of the pivotal questions for the future of gay rights: Do businesses have a right to discriminate against gay and lesbian employees or customers if the business owners claim a religious objection? The issue was teed up perfectly this term, but Justice Kennedy ultimately punted, leaving the key questions once again unaddressed. With his resignation he ensured they would be answered by a future, more conservative court more likely to see anti-gay discrimination as perfectly rational.

Back in 2010, after the Supreme Court’s decision in Citizens United overturned one of former Justice Sandra Day O’Connor’s campaign finance opinions, she lamented her retirement, saying, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.”

It may be Justice Kennedy — and those Americans who’ve found protections and respect in his decisions — with similar regrets in the years to come.

I'd be lying if I didn't admit that I am very fearful for the future.

Abortion and LGBT Rights Are Next the Trump/Christofascist Hit List

Like many in the LGBT community, I felt physically ill when I heard the news that Justice Anthony Kennedy would be retiring from the U.S. Supreme Court at the end of the current term.  His retirement means that Der Trumpenführer, whose approval ratings remain in the toilet outside of Christofascist and white supremacist circles, will nominate another ideologue like Neil Gorsuch who will purse the Trump base's dream of outlawing all abortions, rescinding LGBT rights, and disenfranchising as many minority voters as possible.  Short of a miracle where moderate Republicans - if such a thing still exists - in the U.S. Senate buck Trump and their party and reject Trump's nominee, for at least a generation, the U.S. Supreme Court will be openly hostile to minority rights of all kinds. How bad will it be?  Likely, very bad and if "friends" who voted for Trump think I will forgive them, they are delusional.  They have stabbed so many of us in the back and deserve nothing but derision and ostracizing from the company of decent, moral people.  A piece in The Daily Beast, looks at the coming nightmare.  Here are highlights:

The judicial apocalypse is here, and there’s nothing Democrats can do to stop it.  Justice Anthony Kennedy, the swing voter in most of the Supreme Court’s close cases of the last decade, is retiring at age 81. President Donald Trump will choose his successor.

With the Senate filibuster of Supreme Court nominees eliminated last year by Republican Senate Leader Mitch McConnell, anyone Trump nominates will be rubber-stamped.  That has been the pattern so far, with 39 judges confirmed so far, often in an expedited process, with not a single Republican vote opposing any of them.

Moreover, Trump’s judicial nominees thus far have been chosen by the far-right Federalist Society, which has put forward extreme ideologues in the mode of Justice Clarence Thomas, whose ideas were once considered on the fringe but are now increasingly within the [GOP] mainstream. 

While Justice Neil Gorsuch replaced another conservative, the late Justice Antonin Scalia, whoever replaces Justice Kennedy will likely be a conservative firebrand replacing a moderate.  The shift will transform the Court for decades to come.

Among the Court’s precedents that will be on the chopping block are Roe v. Wade, protecting women’s rights to choose to have an abortion, and Obergefell v. Hodges, protecting gay people’s rights to marry.

Roe has been significantly limited in recent years, and all four sitting conservative justices have either opposed it directly, or opposed the doctrines on which it is based.

Justice Kennedy wrote the Obergefell decision, over a vigorous dissent by Chief Justice John Roberts, and the vote was 5-4.  Even the Court’s own doctrines of respecting precedent will not protect same-sex marriage; just this week, the Court directly overturned a precedent regarding public-section unions. 

It is quite likely that the both rights will come to an end within two to three years: there are cases pending that would further limit each, and more will soon follow.

In the case of abortion rights, Justice Kennedy was the swing vote striking down Texas’s junk-science regulations that would have shuttered most abortion clinics in the state; with him gone, other states will surely pass and litigate their own versions.  Iowa’s new law, known as the heartbeat bill, bans abortions once a heartbeat is detected, usually the sixth week of pregnancy – the lawsuit about that law will provide the next Supreme Court with an opportunity to further limit Roe, or overturn it entirely.

Likewise for marriage rights. There are already cases pending about whether same-sex spouses are entitled to spousal benefits, and numerous cases about when private actors may discriminate against gay people.  Each of these provide opportunities to limit or overturn Obergefell.

Assuming the Senate fast-tracks the nomination – as McConnell and Trump have already said will happen – the confirmation vote will take place before the November elections.

Democrats’ only hope is to somehow persuade moderate Republicans like Jeff Flake or Susan Collins to oppose Trump’s nominee, although they have been mostly unable to do in the first two years of the Trump presidency.  (Senator Flake recently said he would block Trump’s nominees if the Senate did not act to restrain Trump on tariffs.)

Understandably, the consequences for the Supreme Court, and civil rights as we know them today, are eclipsing, . . . Justice Kennedy turned out to be the unlikely hero of the LGBT equality movement, writing every major pro-LGBT opinion in the Supreme Court’s history, culminating in Obergefell in 2015.

n an ideal world, a responsible Republican president would nominate a thoughtful moderate-conservative who is respected by his colleagues and who lies within the judicial mainstream – basically, a conservative version of Merrick Garland.

But in the world we live in, Trump is likely to please his base by nominating an extreme conservative, like his recent picks who have compared abortion to slavery, called Justice Kennedy a “judicial prostitute,” and called transgender children “evidence of Satan’s plan at work.”  All of those nominees, by the way, were confirmed without a single Republican vote against.

I am not many years from retirement and, if my fears are realized, the husband and I may find ourselves looking to retire somewhere outside of the United States.

An Open Letter to Justice Anthony Kennedy

If one looks at Donald Trump's picks for cabinet positions, most have been frightening and have involved ideologues and those not competent for their positions.  A number of his would be judicial appointments have been labeled "unfit" by the American Bar Associations.  Thus, nothing is more frightening than the prospects of Donald Trump nominating a second justice to the United States Supreme Court should Justice Anthony Kennedy retire as some rumors have suggested might occur.  This would be a tragedy for the rule of law and would literally threaten the rights of minorities of all stripes and invite an impermissible intertwining of right wing Christian hate and bigotry into the nation's laws.  An open letter by the Editorial Board of the New York Times pleads with Kennedy to remain in his post through next January to save the country and the court.   I hope Kennedy listens to this plea.  Here are  highlights of that letter:

Dear Justice Kennedy,

As you have no doubt heard, rumors of your impending retirement are, for the second year in a row, echoing around Washington and across America. While you and your colleagues on the Supreme Court were listening to the final oral arguments of the term in recent days, those rumors were only growing more insistent.

How can we put this the right way? Please don’t go.

Sitting between the four liberal justices and the four conservatives, you are the most powerful member of the most powerful court in the country, as you have been for at least a decade. Your vote, more than that of any other justice, has delivered landmark legal victories for Americans of all political stripes, from gays and lesbians seeking equal rights to African-American college students seeking a better education to deep-pocketed corporations seeking to spend more money influencing politics.

You have sent mixed signals about your intentions, but that hasn’t stopped Republicans in Congress from referring to your departure as a done deal.

[T]his moment is about so much more than partisan jockeying. We can’t know what is in your heart, Your Honor, but we do know what your departure right now would mean for the court, and for the nation. It would not be good. [H]ere are two ways to think about this decision: The safeguarding of your legacy, and the safeguarding of the Supreme Court itself.

Start with the legacy. Across your 30 years on the court, your most important opinions — and there are many — have altered not just the lives of millions of Americans but the course of the nation’s history. A sampling: Protecting reproductive rights, and saving Roe v. Wade from being essentially overturned, in 1992. Recognizing the equality and dignity of gays and lesbians multiple times since 1996 and, in 2015, granting same-sex couples the constitutional right to marry.  . . . You’ve also recognized the continuing travesty of the nation’s broken criminal justice system, voting to strike down excessive sentences for juveniles and the intellectually disabled and forcing states to shrink their overcrowded prisons.

Your record is more conservative than liberal, but there’s no question that you are less of an ideologue than anyone President Trump would pick. How do we know? Look at his first nominee, Justice Gorsuch. Perhaps you were comforted by this choice — a well-qualified judge who clerked for you, and who would have been on any Republican’s short list. But Justice Gorsuch has already made it clear that while he’s a fan of individual liberty, at least in some cases, he is unlikely to go to great pains to protect your most cherished values — equality and human dignity.

Justice Gorsuch replaced Antonin Scalia, a move that didn’t disrupt the balance of the court. Replacing you with a hard-line conservative, in contrast, would have enormous consequences for the nation’s laws and Constitution for decades to come. Just ask Sandra Day O’Connor, your onetime fellow swing justice who left the court in 2006 and now watches helplessly as her replacement, the arch-conservative Samuel Alito Jr., votes to tear down her legacy.

[D]id you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?

Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes?

There is also the institutional legitimacy of and public respect for the nation’s highest court, which we know you cherish even beyond your own legacy. Right now that legitimacy is eroding. The audacious decision by the Senate majority leader, Mitch McConnell, to hold a court seat hostage and use it as an electoral tool “places the court in a position of real institutional peril, . . . . You know as well as anyone that the Supreme Court’s authority depends on public confidence. When that fails, the consequences can be dire.

This is where you come in, Justice Kennedy. You’re a conservative from a time when conservatism was a more or less coherent political philosophy, not a tribal identity. You’re a believer in free markets and individual liberty, and also in human rights and equal justice. A defender of the rule of law, of civility and decorum — those time-honored values now desecrated daily by the current inhabitant of the Oval Office.

The American people are desperate for someone who is not polarizing, and your continued service would be an encouraging sign to them that the court can still operate outside politics. It could also be a model for future justices, though we’re not holding our breath. If you leave, the dam breaks. We realize this isn’t an entirely fair request. Every 81-year-old, especially those who have devoted their lives to the service of their country, should have the freedom to retire without worrying that the nation’s future may hang in the balance. But this is the world we live in. By stealing the seat [of Merrick Garland] for short-term political advantage, Mr. McConnell has inflicted institutional damage from which the court, and the Senate, may never fully recover. This is your court, Justice Kennedy. It is facing an institutional crisis, and it needs you.

The Republican Plan to End Marriage Equality

Gorsuch and Roberts - will they end marriage equality?

Recently some articles have asked the question of whether the LGBT Rights movement is drawing to a close.  Where such views come from are mind numbing given the reality that LGBT Americans, while finding growing acceptance in society, may soon face an existential threat in the form of a Trump packed United States Supreme with a majority of right wing justices who may deliver the Christofascist dream of overturning marriage equality and perhaps other LGBT legal gains. Only one liberal or moderate current justice need retire before a right wing majority will be in control.  This reality ought to make LGBT Americans wake up with nightmares.  A piece in Slate looks at the likely approach the far right may take to undo marriage equality or make it meaningless in most circumstances.  Indeed, the extremist Texas Supreme Court has already begun the process.  Here are article excerpts:

Will marriage equality remain the law of the land in the United States? When the Supreme Court ruled that the Constitution protects same-sex couples’ right to wed, its thundering decision seemed enduring and irrevocable. Yet just two years later, gay Americans’ marriage rights are once again under attack in conservative states—with the encouragement of some Supreme Court justices. It’s now clear that not all states, and certainly not all courts, view same-sex marriage as a settled issue. In fact, it’s increasingly apparent that marriage equality opponents have a long-term plan to roll back, and eventually reverse, the signature achievement of the U.S. gay rights movement.

[T]he Supreme Court’s 5–4 decision in Obergefell v. Hodges remains secure so long as its author, Justice Anthony Kennedy, remains on the court along with the four justices who joined his opinion. On June 26, in Pavan v. Smith, the court reaffirmed Obergefell’s core holding that states must extend all benefits and privileges of marriage to same-sex couples. But shortly thereafter, Kennedy retirement rumors resurfaced with a vengeance . . . .

At the very least, Kennedy is likely mulling retirement under Donald Trump and a Republican-controlled Senate. The consequences of Kennedy stepping down are difficult to overstate: Trump would likely replace him with a conservative hardliner like Justice Neil Gorsuch, creating a five-member bloc that could potentially demolish reproductive rights, voting rights, environmental protections, gun restrictions, and redistricting reform. No progressive victory enabled by Kennedy’s vote would be safe.

If Kennedy retires, Roberts will become the swing vote on marriage equality. It is difficult to imagine the chief justice supporting Obergefell in light of his previous dissent. An optimist might speculate that the chief justice, who cares deeply about the court’s institutional legitimacy, would uphold the decision as a matter of stare decisis. Roberts might reason that while he initially opposed Obergefell, he now has an obligation to follow it as a precedent of this court. Overturning the decision, after all, would throw same-sex couples into legal limbo. The ensuing chaos would not be a good look for the Roberts court.

But as the assault on Roe v. Wade has taught us, not all challenges to precedent must confront the original ruling head-on. Through sideways attacks, opponents can chip away at a decision until its foundation has been fatally undermined. Already, conservative states have launched two such attacks on Obergefell.

In the first of these efforts, Arkansas asserted that the Supreme Court’s same-sex marriage decision did not require the state to list married same-sex parents on their children’s birth certificates. This argument is plainly wrong . . . And yet, in late 2016, the Arkansas Supreme Court upheld the state’s refusal to extend these privileges to same-sex couples. Its decision appeared to be a bad-faith misreading of Obergefell: A majority of the (elected) justices claimed, falsely, that birth certificates are a record of biology, not a benefit of marriage, and are therefore exempt from Obergefell’s command of equal treatment. The U.S. Supreme Court reversed that decision in Pavan v. Smith, . . .

Roberts did not explicitly dissent from that ruling, which was issued per curiam without a single author. . . . . Gorsuch, on the other hand, did dissent, along with Justices Clarence Thomas and Samuel Alito. The newest justice wrote that the Arkansas Supreme Court “did not in any way seek to defy but rather earnestly engage Obergefell”—a laughable contention given the lower court’s obvious desire to avoid compliance with that ruling. Gorsuch then maintained that Arkansas has “a birth registration regime based on biology” and “rational reasons” to exclude same-sex couples, another blatant fiction.

Was Gorsuch genuinely baffled by the case? Was he intentionally muddying the waters? Who knows? Either way, his broader willingness to play along with Arkansas’ game sent a clear signal to other conservative states: If you want to defy Obergefell, my conservative colleagues and I are OK with that.

A few days later, the Texas Supreme Court signaled right back to Gorsuch that it was listening loud and clear. In a unanimous decision, the (elected) justices held that Obergefell does not clearly require states to extend spousal benefits to same-sex couples. Their bizarre decision approaches outright defiance of the U.S. Supreme Court. Spousal benefits, such as health insurance, obviously fall within “the constellation of benefits that the states have linked to marriage”—which under Obergefell, must be extended to same-sex couples. By pretending to believe otherwise, the Texas Supreme Court might as well have declared that it would not apply Obergefell at all.

The Texas justices were not quite as defiant as the Louisiana Supreme Court Justice Jefferson Hughes III, who announced in 2015 that he would never apply Obergefell because same-sex couples are child molesters (among other dubious reasons). But the result is largely the same: State supreme court justices are giving their governments the green light to resume discrimination against same-sex couples.

But what happens if Kennedy is replaced by a Gorsuch-style conservative? At that point, Roberts would be free to rewrite Windsor and Obergefell however he wants. Roberts could remain faithful to the original text of both decisions. He could also reverse them. But the likeliest possibility is that Roberts first cuts them down to a single guarantee—the right for same-sex couples to receive a marriage license with no attendant privileges. In case after case, Roberts could vote to allow discrimination against same-sex couples but affirm their right to the license itself. He could, for instance, permit the denial of spousal benefits to same-sex couples, contending that so long as gay people can marry, their rights have not been abridged.

And then, once Obergefell has been mostly gutted, Roberts could drop this pretense and deliver the final death blow, asserting that the decision had already been lethally eroded. It’s a classic Roberts trick.

Marriage equality is secure today. Obergefell will not fall tomorrow. But it is on shakier ground than most Americans probably realize. If Kennedy retires, the future of same-sex marriage will rest in the hands of a man who vehemently opposes gay rights. And nobody should count on the chief justice to uphold a decision he hates.

The irony is that same sex marriage in no way diminishes heterosexual marriage.  The only thing it threatens is Christofascist beliefs that gays are sinners and less than human.  Full equality invites the younger generations to question the Christofascists fear and hate based beliefs and that is why Gorsuch and those like him seek to destroy marriage equality.

Electing Hillary and the Importance of Filling the Supreme Court

A piece in The Advocate looks at an issue that ought to wake up Bernie Sanders supporters from their impossible dream: the desperate need to put a Democrat in the White House in November and the potential horrific consequences if Donald Trump - who has condemned the Obergefell ruling - were to be the one making nominations to the Court. Sanders may be endangering progressive causes for a generation if he allows his ego to over rule pragmatic, common sense thinking that may save the nation, and certainly LGBT citizens from the disaster of Trump appointments to the Court.   Here are some article highlights that ought to make Sanders supporters to awake from their dreams:

The post-Scalia court will likely confront a host of legal questions important to the LGBT community, from antigay “religious liberty” and employment discrimination to trans rights and bathroom access. It is not at all clear that the champion of marriage equality, Justice Anthony Kennedy, will again side with the liberals on these knotty issues. And it therefore seems quite likely that Scalia’s successor will hold the key to LGBT equality on a divided court. 

Given Kennedy’s famously sentimental marriage-equality opinion, the justice is often presumed to be a reliable vote in favor of gay rights against discrimination. But Kennedy has several competing passions — one of which is a near-absolute belief in a constitutional right to free association. In one especially regrettable 2000 decision, Boy Scouts of America v. Dale, Kennedy joined an opinion holding that the Boy Scouts have a First Amendment right to exclude gays from their group. Allowing gays to join, a slim majority of the court held, would “force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.” Thus, the group was constitutionally exempt from LGBT nondiscrimination laws.

Kennedy’s willingness to join the Boy Scouts opinion has deeply troubling implications for the series of antigay “religious liberty” cases making their way toward the court’s docket. These cases typically involve businesses (such as photographers and florists) who refuse to serve same-sex couples on account of their religion, often couching their refusals in the language of free-speech and free-association claims. The antigay business owners who turn away gays insist that the First Amendment protects their right not to associate with gay couples; doing so, they assert, would express a message that they approve of same-sex relationships. 

This argument is cleverly crafted to capture Kennedy’s heart. The key difference between the Boy Scouts case and the “religious liberty” cases is the distinction between a private organization and a business. But the constitutional importance of this distinction can easily be waved away if one buys into the idea that merely associating with a gay person sends a message of tolerance — as Kennedy clearly does. Moreover, Kennedy provided the fifth vote for Hobby Lobby, a decision that vastly expanded private, for-profit corporations’ right to discriminate on religious grounds. With Scalia gone, the Hobby Lobby majority is now a man down; the justice’s replacement could reverse that case’s license to discriminate — or extend it to antigay businesses.

Gay and trans Americans have another Supreme Court showdown on the horizon. Title VII of the Civil Rights Act of 1964 bans employment discrimination “because of sex.” . . . . the Equal Employment Opportunity Commission has ruled that Title VII also proscribes anti-trans discrimination and antigay discrimination. Anti-trans discrimination, the agency held, is inherently based in sex stereotyping about women’s femininity and men’s masculinity; distaste for an individual’s gender identity is, by definition, a sex-based judgment call. Homophobia is similarly sexist, according to the EEOC:

But EEOC is just a federal agency, with no actual power over federal judges. Some federal courts have accepted these EEOC rulings; some have rejected them; none are bound by them — until the Supreme Court signs off, which it has not yet done. LGBT advocates have long been nervous that Kennedy will reject the EEOC’s comprehensive definition of sex discrimination and sex stereotyping. . . . . Once again, Scalia’s replacement may tip the balance one way or the other.

A constitutional challenge to North Carolina’s vicious new anti-LGBT law, which nullifies local LGBT rights ordinances and bars trans people from using many public bathrooms, centers its analysis on Romer. As well it should: Romer’s basic rule — that laws motivated by animus toward a single group are constitutionally invalid — would seem to obviously implicate bathroom bills. With no evidence that trans people pose a threat in bathrooms, the anti-trans animus driving these bills is essentially undeniable. Legislatures simply want to disadvantage trans people because they don’t like them. And if Romer means anything at all, it means the government doesn’t get to do that.

Which side of Kennedy will trans activists face? The compassionate author of Romer or the sexist traditionalist? With any luck, trans people’s rights won’t hinge on this question: A Democratic appointee to the high court is almost certain to side with equality over intolerance. Indeed, that justice may well hold the critical vote in the next round of LGBT cases. 

Let’s hope he or she makes it onto the bench in time to ensure that Obergefell was just the beginning of a new era of LGBT constitutional equality. 

The Single Most Important Word In the Marriage Equality Opinion

Justice Anthony Kennedy who authored yesterday's historic ruling

Tucked into yesterday's historic marriage ruling is a single word that may in time auger the ultimate total legal defeat of the Christofascists' war on LGBT Americans.  The word?   Immutable.  Why is this so single word so important?  Because it is the basis for non-discrimination protections based on other immutable characteristics such as race, gender, age, and national origin (unfortunately, religion is included in such statutory protections even though religion is totally voluntary and a choice).  If sexual orientation or gender identity is immutable, it sets the stage for the expansion of non-discrimination laws and the Christofascist claims that sexual orientation is a "choice" or strictly voluntary "conduct."   Think Progress looks at how this single word may have huge impact in the years to come.  Here are excerpts:

[W]hile Friday’s decision is not a perfect victory for gay rights, it is still a massive one. And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context.

The single most important word in Justice Anthony Kennedy’s opinion for the Court is “immutable.” He uses this word twice, once in an off-hand statement that sexual orientation is an “immutable nature,” and again in a more pointed statement that “psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”

Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.

Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard.

A close runner-up in the competition for the single most important word in Kennedy’s opinion is “fundamental.” Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.

This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. . . . . When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.

Another noteworthy aspect of the ruling is recognized:

Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”

And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.

Yesterday was a huge victory for LGBT Americans.  It may prove to be an even bigger defeat for the Christofascists and the hate dispensing "family values" groups who as a further aside may have just lost one of their biggest fundraising schemes. 

Prediction Panel: The Supreme Court Will Rule Against Gay Marriage Bans

No one knows for certain how the U.S. Supreme Court will rule on gay marriage bans except the justices themselves and perhaps their law clerks.  As the Christofascists continue to carry on and wail as if the world is soon to be ending - the only thing ending is the ease with once they have stigmatized LGBT individuals - various legal prognosticators are predicting how the Court will rule.  As the Wall Street Journal reports, most believe that the Court will invalidate all state bans, especially given its refusal to hear appeals from the 4th Circuit ruling that brought same sex marriage to Virginia.  Note, only those affiliated with the hate group, National Organization for Marriage predict victory for the Christofascists.  Here are some article highlights:

The Supreme Court by next week is expected to decide whether gay couples are constitutionally entitled to marry. With the votes still unknown, Law Blog asked a group of legal scholars to predict the outcome in the historic case.

The big question in the case, which justices argued in April, is whether the 14th Amendment requires all states to perform same-sex marriages. Most legal experts who spoke with Law Blog anticipate a victory for gay rights.

Ilya Somin, a constitutional scholar at George Mason University School of Law, thinks that justices, by a vote of 5-4 or 6-3, will decide that laws banning same-sex marriage are unconstitutional.
Cornell University law professor Michael Dorf makes the same prediction. He said the Supreme Court tipped its hand last year when it left in place rulings from several lower courts striking down state bans.

The decision not to intervene then effectively expanded gay marriage to states like Indiana, Oklahoma, Utah, Virginia and Wisconsin, and Mr. Dorf said he doesn’t think the justices would have allowed same-sex unions in those states to proceed if they “weren’t confident that there were at least five votes to find a right to same-sex marriage,” he said.

Erwin Chemerinsky, dean of UC Irvine Law School, predicts a 6-3 gay marriage victory, with Justice Anthony Kennedy writing an opinion arguing that state laws prohibiting same-sex marriage violate equal-protection guarantees.

Chapman University law professor John Eastman, the chairman of the anti-gay marriage National Organization for Marriage, expects Justice Kennedy will be a swing vote — but in a ruling against gay marriage.

Peeking further into the crystal ball, Law Blog checked in with FantasySCOTUS, the Supreme Court fantasy league sponsored by Thomson Reuters. This year’s contest drew more than 4,000 contestants — many lawyers and law students but others from non-legal backgrounds — who compete for a grand prize of $10,000 by predicting outcomes in Supreme Court cases over the course of a term.

Collectively, the online fantasy league is predicting a 5-4 gay marriage win. The league’s top-three leaders, including the league’s reigning champion Jacob Berlove, are  betting on that outcome too.

A ruling in favor of marriage equality on either Thursday or Friday - the Court has added a day for releasing opinions - prior to HR Pride's big event on Saturday would be wonderful!

Obama to Supreme Court: You Don't Dare Kill Obamacare

With the Supreme Court yet to rule on the challenge to Obamacare - and same sex marriage - much uncertainty and speculation continues as to what the Court will do.  Striking down the exchanges would cause millions to lose healthcare coverage and create chaos in states that have sat back and allowed the federal exchanges to do the job Republicans have refused to do.  As a column in the Washington Post notes, Barack Obama has kept the political pressure on the conservative justices on the Court some of whom likely cannot help but feel the pressure and contemplate the repercussions of an anti-Obamacare ruling.  The Neanderthals on the Court, notably Thomas and Scalia, may not care, but Roberts and Kennedy might take pause.  Here are column highlights:

President Obama uttered more than 3,600 words on the stage of Washington’s Marriott Wardman Park ballroom on Tuesday, but his message could be summed up in three: You wouldn’t dare. 

He was speaking not to the hundreds of hospital administrators assembled for the Catholic Health Association’s conference but to five men not in the room: the conservative justices of the Supreme Court, who in the next 21 days will declare whether they are invalidating the most far-reaching legislation in at least a generation because of one vague clause tucked in its 2,000 pages.

Obama’s appeal to the justices, devotees of judicial modesty all: Do they really wish to cause the massive societal upheaval that would come from killing a law that is now a routine part of American life?

“Five years in, what we are talking about is no longer just a law. It’s no longer just a theory. It isn’t even just about the Affordable Care Act or Obamacare,” he said. “This is now part of the fabric of how we care for one another. This is health care in America.”

Without mentioning the looming decision, Obama warned of its devastating potential. “Once you see millions of people having health care, once you see that all the bad things that were predicted didn’t happen, you’d think that it’d be time to move on,” he said. “It seems so cynical to want to take coverage away from millions of people, to take care away from the people who need it the most, to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”

The conservative justices, like conservative critics of the law generally, are unlikely to be persuaded by Obama’s recitation of the merits of the law, which he repeated at length Tuesday. But they may well be reluctant to upend a law that now has broad acceptance in American society. 

[T]he recent improvement in the law’s standing comes even though most Americans aren’t aware that the law has cost the government less than forecast.

With such broad acceptance of (if not fondness for) the new health-care status quo, it’s difficult to imagine the Supreme Court justices taking away health coverage for 6 million or 7 million Americans, causing costs to skyrocket for millions of others, and likely plunging the entire American health-care system into chaos. That’s not just judicial activism — it would be a judicially induced cataclysm.

Such a cataclysm has no place in the catechism of Sister Carol Keehan, head of the Catholic Health Association and a key early supporter of Obamacare who broke with the Catholic bishops to support the law. 

Again, it is ironic that it is Republicans who claim to be the party of Christian values that wants the Affordable Health Care Act killed even if that means millions would lose coverage.  In today's GOP, once one ceases to be a fetus, they simply do not give a damn.  The GOP is the antithesis of being "pro-life."

SCOTUS - How Obamacare’s fate will really be decided

Yesterday, the U.S. Supreme Court heard oral arguments in King v. Burwell, a suit brought by far right elements seeking yet again to sabotage the Affordable Health Care Act ("AHCA") and leave millions of Americans, including children, uninsured.  Naturally the opponents of AHCA have no proposed alternative plan and seemingly want those they see as "takers" left to die.  It's after all, the "Christian" thing to do if one is a far right Christofascist/Tea Party adherent. With the votes of Scalia, Thomas and Alito in the camp to destroy AHCA, the focus turns to Chief Justice Roberts and Justice Anthony Kennedy who will cast the deciding votes.  A piece in Salon looks at their dilemma.  Here are excerpts:

Oral arguments in King v. Burwell began and ended yesterday, and the Supreme Court will determine over the next few days whether the Affordable Care Act’s health insurance tax credits can be legally distributed in states that relied on the federal government to set up their insurance exchanges. The plaintiffs in this case argued vigorously that a hyper-literal interpretation of one short clause in the ACA should prevent those subsidies from going out, even though such an interpretation would put the law at war with itself and defeat its stated intention of making insurance affordable for all Americans.

The plaintiffs had sympathetic ears in at least two of the conservative justices: Antonin Scalia and Samuel Alito. (Clarence Thomas, as is his custom, remained silent during the oral arguments, but his opinion of the ACA is no secret.) Scalia in particular was enthusiastic to see the law blown up from within, regardless of what Congress intended or what the rest of the law says.

The liberal justices did an effective job of tearing down the plaintiff’s arguments – Elana Kagan offered a great deconstruction of the petitioners’ case that put the plaintiff’s lawyer, Michael Carvin, in such an awkward spot that Alito had to come to his rescue. But what mattered most were the comments from the two justices broadly viewed as the “swing” votes in this case: Chief Justice John Roberts and Anthony Kennedy. Roberts didn’t say a whole lot and left people guessing as to what he’s thinking, but Kennedy was quite voluble, and what he said left liberals feeling confident and conservatives noticeably deflated.

For Kennedy, one the biggest issues confronting the justices in this case is state sovereignty. King v. Burwell does not pose a constitutional challenge to the Affordable Care Act, it simply seeks to have the text of the statue interpreted in a very narrow and outlandish way. Kennedy raised the possibility that interpreting the statute in accordance with the plaintiff’s argument would actually serve to create a constitutional crisis by coercing the states into acting to set up their own insurance exchanges.

Trying to figure out how the justices will rule based on their remarks during oral arguments is a dangerous pursuit, but if you’re looking for a basic lay of the land, it feels safe to say that there are three obvious votes against the Affordable Care Act (Scalia, Thomas, Alito), four obvious votes in favor (Kagan, Breyer, Ginsburg, Sotomayor), and two question marks in Kennedy and Roberts. Bloomberg View columnist Noah Feldman made the interesting argument that Kennedy, in pursuing the federalism angle so enthusiastically, was actually pressuring Roberts to be the one to vote to in favor of the ACA. It was Roberts who used the coercion argument to defang the ACA’s Medicaid expansion back in 2012, and Kennedy may have been unsubtly reminding him that this is his principle to stand on.

That, of course, assumes that the conservative justices will care about principle more than they do about destroying the Affordable Care Act. Either way, we’re in the thoroughly depressing situation in which the health insurance of millions of Americans depends on whether Anthony Kennedy and John Roberts can work out amongst themselves who will be the one to “betray” conservatives by adhering to principle and common sense and voting to protect the Affordable Care Act.

Ruth Bader Ginsburg: Why I Can’t Resign Now

In some respects one of the most important aspects of presidential elections in America is the power of the president to nominate appointees to the U.S. Supreme Court.  But that power of appointment is not unlimited.  Nominees still must pass approval by the U.S. Senate.  Something that is not as assured as it once was given the non-stop obstruction of today's Congressional Republicans.  A piece in Politico looks at Justice Ruth Bader Ginsburg's explanation of why she will not retire for as long as possible.  Here are article excerpts:

Supreme Court Justice Ruth Bader Ginsburg is pushing back against suggestions that she should soon retire, saying President Barack Obama would be unable to get a justice like her through the Senate.

“Who do you think President Obama could appoint at this very day, given the boundaries that we have?” the 81-year-old justice told Elle Magazine in an interview excerpt released Tuesday. The wide-ranging interview portrays Ginsburg — seen as a member of the court’s liberal wing — as attuned to the dynamics in Congress and some of the greater political and social discussions in the U.S.

In the interview, she suggested that Senate Republicans would likely block any potential nominee like her.

“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the oldest member of the high court said. “[A]nybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” later adding that she can “do the job full steam.”

Tuesday’s excerpt focused largely on the court’s conservative shift in recent years and Ginsburg’s disappointment with its rulings on women’s issues.

When asked why the court has become “very conservative” on women’s rights, Ginsburg singled out a particular justice.

“To be frank, it’s one person who made the difference: Justice [Anthony] Kennedy,” she said, the justice often seen as the court’s swing vote given the court’s relatively entrenched liberal and conservative camps of four justices each. Ginsburg said that since upholding Roe v. Wade, Kennedy has been largely responsible for the upholding of several abortion restrictions.

When asked which decisions she thinks will be considered most significant 50 years from now, Ginsburg pointed to June’s ruling in Burwell v. Hobby Lobby, in which the court said corporations could use religious exemptions to avoid paying for contraception coverage under the Affordable Care Act.

“Well, I think 50 years from now, people will not be able to understand Hobby Lobby,” said the justice, who wrote a blistering dissent in the case.