Hearing On Virginia Marriage Ban to Go Forward; No Decision on Thursday

As anticipated in my last post, the oral arguments on the pending motions in Bostic v. Rainey will go forward on Thursday, January 30, 2014, as previously scheduled.  As noted in the previous post, Judge Wright Allen rejected an attempt by Circuit Court Clerk Michele McQuigg to delay the hearing.  It is also now clear that despite holding the hearings on Thursday,  the Court will not rule on Thursday and interested parties will have to wait for the release of Judge Wright Allen's opinion at some later date.  Frankly, this is what I expected.  The Court knows that regardless of how she rules, the ruling will be appealed to the 4th Circuit Court of Appeals.  Therefore, expect a lengthy and thorough opinion.  Also, until the opinion is released, we likewise will not know if a stay of the ruling's effect will be granted either by Judge Wright Allen or the 4th Circuit should the Court strike down Virginia's marriage same sex marriage ban as unconstitutional.  Indicative of the fact that religious based anti-gay animus is at the heart of the Marshall-Newman Amendment, the religious extremists at The Family Foundation have filed an amicus brief and Michele McQuigg is represented by another far right, anti-gay Christofascist group.  First here are highlights from the Court's latest Order:

ORDER taking [27] Plaintiffs' Motion for a Preliminary Injunction, and all motions for summary judgment, under advisement. Following review of the parties' status reports and the supplemental briefing now filed, the Court confirms that oral argument on the summary judgment motions and the motion for a preliminary injunction will be heard commencing at 9 AM on Thursday, January 30, 2014, in Courtroom Three, . . .

the Court sets the following Order of Presentation for oral argument at the hearing: Counsel for Plaintiffs present opening argument for no more than twenty minutes; Counsel for Defendant Rainey present argument for no more than twenty minutes; Counsel for Defendant Schaefer, III, present argument for no more than thirty minutes; Counsel for Intervenor McQuigg present argument for no more than thirty minutes; Counsel for Amicus The Family Foundation of Virginia present argument for no more than thirty minutes; Counsel for Amici Professors in Support of Defendants' Motions for Summary Judgment present argument for no more than thirty minutes; Counsel for Plaintiffs present rebuttal for up to ten minutes; and Counsel for Defendant Rainey present rebuttal for up to ten minutes. Counsel are advised that duplicative or cumulative argument is strongly discouraged. The pending motions will be taken under further advisement at the close of the hearing.

More on the case is found at the Daily Press.  Here are story excerpts:

A federal judge will go forward as scheduled Thursday with a hearing in a constitutional challenge to Virginia’s marriage laws.

Last week, U.S. District Judge Arenda L. Wright Allen asked whether the parties still wanted oral arguments in light of what she termed a “compelling” filing by newly elected Virginia Attorney General Mark Herring.

Virginia’s former attorney general, Ken Cuccinelli, had strongly defended Virginia’s laws banning same-sex marriage. But in a 23-page brief filed last week, Herring not only said he would no longer defend Virginia’s ban but would actively side with the plaintiffs in asking Allen to strike it down.

Stuart A. Raphael, the state’s solicitor general who serves under Herring, said that while the “ongoing, harmful denial of civil liberties to Virginia’s same-sex couples” should be resolved as quickly as possible, the hearing should go forward.

“The decision here will be a landmark ruling in Virginia on one of the most important civil rights issues of our time,” Raphael wrote. “The gravity of the matter and the stakes involved make it reasonable to allow the parties to supplement their written submissions … with brief oral argument.”
Doing so, Raphael wrote, “comports with the dignity and seriousness of the issues and will obviate any concern that the losing parties were not given a fair opportunity to be heard.”

Aside from Herring’s office, other parties in the case did not take a strong stand on whether oral arguments should take place. Late Monday afternoon, Allen said the hearing would indeed go forward.

Judge in Bostic v. Rainey Rejects Defendant's Effort to Delay Hearing

As ordered by District Judge Arenda L. Wright Allen last Thursday, both Defendant George E. Schaefer, III, Clerk of the Norfolk Circuit Court, and Michele B. McQuigg, Clerk of the Prince William County Clerk ofCircuit Court, filed there responses to the change of position filing submitted by the Office of the Attorney General of Virginia last Thursday.  Schaefer is represented by Bob McDonnell's former law firm.  McQuigg, is represented by the grossly misnamed Alliance Defending Freedom, formerly the Alliance Defense Fund, an ultra-far right Christofascist organization.    McQuigg's counsel sought (i) to adopt the adopt the Motion for Summary Judgment formerly filed on behalf of Defendant Janet M. Rainey, State Registrar of Vital Records, by Ken Cuccinelli as Virginia Attorney General, and (ii) to secure a delay of the hearing scheduled for January 30, 2014, and permission to file a 30 page brief not later than February 6, 2014.  One might say that the Court went ballistic in respect to this latter delaying tactic.  Here are excrpts from the Order entered today:

Intervenor is permitted to adopt the Motion (ECF No. 38) and briefing (ECF Nos. 44 and 65) as requested.

This Court notes, however, that the intervention into this action was permitted after the Court fulfilled its obligation to determine "whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). The intervention was permitted after Intervenor offered to take no steps to delay the adjudication of the pending motions. Reply Br. Supp. Mot. Intervene at 8-9, ECF No. 88 ("Clerk McQuigg affirms that while both of the motions for summary judgment that she joined remain pending, she will not file additional motions or otherwise take steps to delay the prompt resolution of those
motions."). By that offer, this Court was assured that the intervention would not unduly delay or prejudice the adjudication of the original parties' rights.

The Court is dismayed at Intervener's subsequent arguments regarding her request to adopt the desired motion and briefing. Counsel contended that if the adoption were not allowed, Intervenor should be entitled to file her own dispositive motion. Counsel also objected to the Court's decision to allow Intervenor to file only an expedited five-page response to the recent Memorandum from the Office of the Attorney General, asserting that this somehow violated the "governing rules" that are applicable to the filing of responses to pending motions. Counsel asserted that if the requested adoption of briefing were disallowed, Intervenor should be given until February 6, 2014 to file a thirty-page "response" to the Memorandum from the Office of the Attorney General. Counsel then asserted that the hearing to resolve the original parties' motions should be postponed.

Counsel's proposed "remedies" sought in the event that adoption was denied misinterpret the application of "governing rules" (the Attorney General has not filed a pending motion that necessitates a response). Worse, these proposed "remedies" fly in the face of counsel's prior vow to take no steps to delay the adjudication of the original parties' pending motions, the significance of which was clearly stated in this Court's Order allowing intervention. Intervenor is advised that permission to adopt the motion and briefing as requested is granted despite these disingenuous arguments.

Monday Morning Male Beauty

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Vladimir Putin’s Olympic Sized Corruption

Fears of attempted acts of terrorism against the 2014 Winter Games in Sochi, Russia continue to multiply causing some U.S. Oly,pic team members to have hired their own additional security details that include former Navy SEALS as detail members.  Meanwhile, new reports of the graft and corruption - and the gross ripping off of Russian citizens - by Putin cronies make the 2014 Winter Games perhaps the most corrupt in history.  A piece in The Daily Beast looks at a new release by opposition leaders in Russia that details the corruption and the huge amounts of money more or less stolen by Putin's sycophants.  Here are excerpts:

It was inevitable that Alexey Navalny would do something big with the Olympics. The opposition leader famous for his anti-graft muckraking — and put on show trial for bogus “embezzlement” charges — couldn’t let the biggest racket in Russian history pass without his own peal-back of corporate cronyism, cost inflation, and outright criminality. The upcoming 2014 Winter Games in Sochi is now estimated to have cost more than $50 billion, a price tag higher than the last 21 Winter Games combined and more expensive than any Summer Games ever held. 

The names and figures behind each building, hotel, media center, and ski slope are detailed: who did the building, who paid for it, who really paid for it, and who got fired or indicted.

But the Foundation’s real service is adding meat on the bones of what most Russians already suspected. A poll taken last year found that two-thirds of the country is convinced that much of the money allocated for Sochi was either misused or “simply stolen.”

An Olympic media center, for instance, which will house 8,000 journalists, was built by Inzhtransstroy Corp. Ltd., a company 51 percent-co-owned, through a subsidiary, by Arkady Rotenberg, Vladimir Putin’s old friend and judo partner—and, naturally, a billionaire. Opposition figures Boris Nemtsov and Leonid Martynyuk, who have produced their own report on Sochi corruption (also translated by The Interpreter) say that enterprises owned or affiliated with Arkady and his brother Boris, who’s also matey with Putin, were the second-highest recipients of state funding for Sochi, following only Olimpstroy, the state corporation overseeing all preparations for Sochi, and just ahead of Yakunin’s Russian Railways.

Or consider the Shayba ice rink, where the figure skating competitions will be held. The rink cost $98.5 million, making it more than one and a half times more expensive than other Olympic equivalents. It’s also wholly funded by private wealth — in this case, that of Iskander Makhmudov, an oligarch close to Vladimir Yakunin, who heads the stage agency Russian Railways, the general partner of the Sochi Games.

Mafiosos crawling into bed with industrialists is hardly unconventional for Russia. As disclosed in a U.S. State Department cable published by WikiLeaks, at least one Spanish prosecutor, José Grinda González, who presciently described Russia, Belarus, Chechnya, and Ukraine as “virtual mafia states,” believed that Petrov, known as vor v zakone — “thief in law” — was working with the collusion of state officials.  Grinda alleged that Russia’s transnational organized crime networks seek “to be a complement to state structures” and that the Kremlin’s strategy was to use the mob “to do whatever [it] cannot acceptably do as a government.”

The Sochi Olympics has garnered more anxious global press coverage for the increasing likelihood of Islamist terrorism, against which all the various Russian security services are set to deploy a staggering 100,000 personnel throughout Sochi and its outlying territory to protect an estimated 4.4 million tourists. “You’ve got people from different departments of different agencies sent from all over the country,” said Andrei Soldatov, an expert on Russia’s intelligence organs. “They might be of some deterrent effect, but they know nothing about how to identify a suicide bomber.”  At least five “black widows”— female suicide bombers — are now thought to be planning an attack, with one possibly already inside the “ring of steel” that more resembles a DMZ around Sochi, which is just a quick trip away from the North Caucasus regions where jihad and brutal state responses to it are daily phenomena.

Rather ominously, as Soldatov told me, “there was no statement from any security officials in Sochi regarding this issue about female suicide bombers.” Moreover, news of the black widows didn’t come from the Russian press, it came from the Western press, which the former then recycled. Putin is sounding his usual macho and bombastic self, but the State Department has issued a travel warning to Americans during the Games, and Defense Secretary Chuck Hagel said Friday, “If we need to extract our citizens, we will have appropriate arrangements with the Russians to do this.”

Leon Aron of the American Enterprise Institute recently wondered if Sochi could “become Russia’s moment of truth, prompting national soul-searching and spurring the movement for democratization?” Aron compared Sochi to the 2010 Commonwealth Games in New Delhi, a travesty of fallen bridges and “uninhabitable” athletic villages which rippled into a wave of successful anti-corruption politics and the election of a new opposition party in four Indian states. Even if Russia doesn’t have an equally free and fair electoral system, the domestic backlash from a major international humiliation must loom large in Putin’s mind.  

Even a power outage, of which there have been many in Sochi already, could see the lights go off in the middle of a slalom or double-axel. In that event, only one man will be held accountable — and it’ll all have been his own fault.

Ultimately, any mishap that may occur will be the responsibility of the International Olympic Committee which should never have awarded the 2014 Winter Games to Sochi.

Washington Post: Mark Herring's Strategy is Correct

While the knuckle dragging elements of the Republican Party of Virginia are plotting a strategy to try to impeach Attorney General Mark Herring, in contrast the Washington Post editorial board is backing Herring's decision to cease defending Virginia's gay marriage ban and applauding Herring's strategy.  The efforts of the insane element of the Virginia GOP and the political whores of the Christofascists at The Family Foundation reflects in part the growing desperation of those who seek to drag Virginia backward in time even as demographic changes are sweeping Virginia towards the embrace of modernity.  And nothing terrifies the "godly Christian" crowd more than modernity.  Here are highlights from the Post's editorial:

MARK HERRING (D), Virginia’s brand-new attorney general, has decided to participate in a legal attack against a provision of the state’s own constitution, joining two couples in federal court to argue that Virginia’s ban on same-sex marriage violates the U.S. Constitution. GOP critics allege that Mr. Herring is disregarding his obligation to defend Virginia’s laws, even turning the state into a “dictatorship” in the process. The National Organization for Marriage wants him impeached. That sort of outrage is not even close to called for.

We broadly agree with Mr. Herring’s reading of the law. The Constitution’s guarantee of equal protection cannot be reconciled with denying, on logically flimsy grounds, equal access to civil marriage for a group that has for centuries been singled out for discrimination. 

Only when attorneys general are convinced that no reasonable argument could vindicate a law under challenge should they feel comfortable doing anything but aggressively defending enacted statute.

The reason Mr. Herring’s move isn’t wholly unwise, and shouldn’t be used to excuse less-
responsible deviations from the norm, is that this issue is highly unusual. The constitutional case for equal marriage isn’t just strong; the ultimate arbiters of what is and is not constitutional are well on their way to saying so. In rulings last year, the Supreme Court pointed toward eventually declaring equal marriage rights to be a constitutional guarantee. Two federal district judges have already taken the justices’ lead and overturned same-sex marriage bans in other states. The worst that can be said of Mr. Herring and officials doing similar things in other states is that they are running ahead of the Supreme Court. That’s a stretch of their official responsibilities, but it’s hardly a rank betrayal of duty. 

It would have been unacceptable, too, if Mr. Herring hadn’t made sure that someone would defend Virginia’s ban in court. But the defendants in the suit, two county clerks, have attorneys, one paid for by a state fund, the other by a national activist organization. Members of the General Assembly are also examining ways to hire counsel to represent them before the court.

We worry that Mr. Herring’s decision will add to the nasty partisanship that increasingly grips Richmond. It won’t be lost on anyone that the attorney general’s move stands to set him up as a leading contender for the next Democratic gubernatorial primary. Instead of allowing this to further polarize the capital, Republicans should tone down their outrage. And Mr. Herring should make clear that this is an extraordinary circumstance and that he will live up to the competence and professionalism that Virginians traditionally have expected of their leaders.

Will Gay Hating Del. Bob Marshall Introduce a Bill Seeking to Ompeach Mark Herring?

I suspect that generations in the not too distant future in will perceive Del. Bob Marshall akin to George Wallace when he stood in the school house door and proclaimed his support for segregation forever. in the future.  These Virginian will wonder how someone could be so filled with hatred and anti-gay animus.  While I have heard some say that in person Marshall can be gracious, my response is so could Adolph Hitler when he chose to be gracious.  Being gracious on occasion doesn't magically make one not a sick monster based on one's deeds and beliefs.  The conservative and sometimes insane blog, Bearing Drift, reports that supposedly one or two members of the House of Delegates plans to introduce a bill to impeach Mark Herring for his decision that the Marshall-Newman Amendment is unconstitutional under the United States Constitution and recent case decisions.  Here are excerpts:

Bearing Drift has been given an exclusive first peek at the resolution calling for the impeachment of Attorney General Mark Herring.  At least two members of the House of Delegates are currently considering carrying the resolution, and there is a strong possibility it will be introduced in the days to come.

THIS IS A DRAFT COPY ONLY. . . .  WHEREAS, by refusing to enforce one of the rights in the Virginia Bill of Rights, General Herring has renounced his oath of office, which will set dangerous precedent . . .

WHEREAS, the nature of General Herring’s neglect of duty is not only unprecedented, but is a danger to all Virginians because without adherence to the paramount law that governs the government of Virginia, all rights of Virginians are at the mercy of government unconstrained by the rule of law;

WHEREAS, Article IV, Section 17 of the Constitution states that the Attorney General “offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments;”

IT IS THEREFORE RESOLVED that the House of Delegates should fulfill its constitutional duty by commencing the impeachment of Virginia Attorney General Mark Herring.

Several things should be noted.  First, the piece doesn't name Marshall, but the bill appears to have his finger prints all over it.  Second, even if the bill is passed the spittle flecked GOP controlled House of Delegates, for Herring to be impeached, it would require a two-thirds vote in the Virginia Senate - something that will not happen.  Third there is a distinct possibility in the interim that a federal court will strike down the Marshall-Newman Amendment giving justification to Herring's action.  And lastly, studies have shown that those who are most homophobic are the ones most turned on by gay porn.  Given Marshall's anti-gay animus, the man must be a deeply closet, self -loathing individual to expend so much hate and vitriol towards Virginia's LGBT citizens.  Someone fully comfortable with his own sexuality doesn't act this way.  I long for the day when Marshall - and Ken Cuccinelli as well - gets outed.

More Sunday Male Beauty

Duck Dynasty Ratings Continue to Drop

A face of bigotry

I continually say that bigotry carries an economic price - typically in the context of Virginia's homophobic and racist rural areas where unemployment is high and where few new businesses want to relocate.  After all, who wants to locate a business or plant in an area inhabited by social Neanderthals who will be hostile to educated and moderate individuals.  Sadly, the inhabitants of Southwest Virginia and parts of the Shenandoah Valley haven't yet figured out this reality.  But, based on the continued plummeting of the ratings for Duck Dynasty, the same economic truism holds true in the realm of television.  The New York Times looks at the show's apparent continued downward spiral and notes the homophobic mindset of the cast while ignoring their racism.  Here are excerpts:

For a second week in a row, ratings for “Duck Dynasty,” the prodigious success for the A&E network, were off sharply from its previous cycle, suggesting — though far from proving — that there has been a significant backlash to comments made by Phil Robertson, the patriarch of the family at the center of the show.

Those remarks were criticized for being homophobic by the network’s management, which first suspended Mr. Robertson and then retreated under pressure from conservative voices.

So far, the new season, the show’s fifth, is showing a significant audience falloff. The second episode, Wednesday night was down to 6.6 million viewers (before delayed viewing is counted) from 8.5 million for the second episode of the show’s previous cycle, which aired in August.

The audience for last week’s premiere, also 8.5 million, was down from 11.7 million for the show’s previous premiere.

Similarly, the show has fallen off in the category that A&E sells to advertisers, viewers between the ages of 18 and 49. The premiere last week came in at a 3.3 rating in that group, down from a 5 rating for the premiere in August. Wednesday’s episode dropped to a 2.9 rating.

Personally, I hope the ratings continue to plummet.   History is moving on and it is the Christofascists and white supremacists who deserve to be thrown on the trash heap of history.

Right Wingers and Homophobes Go Nuts Over Mark Herring's Justified Decision to Drop Defense of Gay Marriage Ban

At time it is difficult to describe the intensity of the swamp fever and hate that now infect the Republican Party base in Virginia and elsewhere.  If one wants to see how the rise of Hitler and the Holocaust occurred in Germany in the 1930's, look no further than the base of the Republican Party of Virginia 2014.  The reaction of the Christofascists/Tea Party to Attorney General Mark Herring's decision to cease defending Virginia's gay marriage bans continues to give new meaning to the term batshitery.  Never mind that (i) Mark Herring IS upholding the U.S. Constitution which trumps the Virginia Constitution. and (ii) both Ken Cuccinelli and Jerry Kilgore set the precedent for not defending laws they deemed unconstitutional (in Kilgore's case, like Herring, the refusal involved a provision of the Virginia Constitution) .  Blue Virginia has compiled some of the insanity that now is deemed rational discourse within the GOP base in Virginia.  Blue Virginia has assembled examples of this sick insanity.  Note the totally untrue claims of election fraud and attacks on Northern Virginia, one of Virginia's economic dynamos that pays far more than its share in supporting Virginia's budget.  Note: the spelling errors set out below are from the far right commentators.  Here are excerpts:

As you're probably aware, the far-right, theocratic, and otherwise cuckoo-for-Cocoa-Puffs wing of the Virginia Republican Party is in full meltdown mode over Attorney General Mark Herring's gay marriage announcement the other day. Case in point: Ken Cuccinelli's Facebook page, and specifically the comments in reaction to his posting of the image to the far right (appropriately enough) of this post. Check out a few examples of the insanity below, not to mention the utter idiocy (e.g., English grammar totally optional and typos mandatory, such as spelling "liar" as "lier;" "riddled" as "riddeled;" "election" as "Ellection;" "Presidential" as "Presidental;" "break" as "brake;" etc.; etc.) and anti-LGBT hysteria. Craaaaaaaazy!

Allegations of Democrats Stealing the Election via "Voter Fraud," etc.
*"i knew this was going to happen the moment i saw how the elections were riddeled with voter fraud. they wish to push their anti gun, pro abortion and pro gay agenda as quickly as possible."
*"I would not be surprised if these elections were rigged. Obama, was not elected with majority."
*"We MUST clean up VOTER FRAUD=NOW, BEFORE the Upcomeing Nov. 2014 Election's, & the 2016 Presidental Ellection!!! NOW!"
*"if we do not stand to liberals and their affinity to brake the law and cause voter fraud we will have a divided and destroyed United States."
*"Thank God Glenn Beck exposed the fraud between Libertarians and the Democrats."
*"DC has taken over our state and I think the election here in NOV. was all about FRAUD !!!!!"

Northern Virginia Needs to Go!
*"Man, what a sad time for VA. It sickens me to see such a great state turning into one of the liberal petri dishes of the north. NOVA just needs to be given to DC."
*"If Fairfax would join DC and leave Virginia we would be a much different state ... large percent of people in N VA are imports and bring the NJ NY mindset with them ....."
*"Can the Commonwelth rid Themselves of Fairfax and Arlington counties then we would be Red Again need to start a remove Northern VA from the rest of VA."
*"Take Arlington and separate it from the rest of the state and give Arlington to DC. Problem solved."

Don't Ask Me How, but It Relates to Obama!!!
*"Well, now Obama has his own little puppet AG."
*"There's an agenda going on here and apparently only some of us see it. I didn't vote for Obama or any democrats in Va. I find it hard to believe after the first 4 years went bad, Obama was elected again."
*"Those oaths used to mean something, until Obama took office."
*"So help me Obama."
*"If he doesn't support the constitution SOMEONE better bring him up on treason charges and let let him destroy our state like Obama is destroying our country and no one is stopping him."
*"Herring is an obamazombie. He is a disgrace and should be impeached immediately..."
*"Didn't Obama take the same oath???"
*"He swears to support the laws he likes- just like Eric Holder and Obama!"
*"Youll be Obamas enemy for taking that oath"

As I have said before, to be a Republican nowadays, one needs to either be consumed by greed, have had a lobotomy, be an active member of the KKK or some other white supremacy group, or a religious extremist extraordinaire.  I am increasingly embarrassed that I was ever a Republican.

America's Mental Health Crisis; Creigh Deeds on "60 Minutes"

While I supported him against the now disgraced Bob "Taliban Bob" McDonnell, Creigh Deeds was a terrible candidate when he ran for governor of Virginia in 2009.  That said, his appearance on 60 Minutes this evening was incredibly powerful and helped to expose the disgraceful state of mental health care in America.  His scared face and deep emotion was so very, very moving. The lack of mental health care is literally a national embarrassment.  But it is especially relevant to members of the LGBT community struggling to deal with the harm done by anti-gay bigotry and the family rejection that some of us are faced with.  A clip from the show is posted above and well worth watching.

When I came out and struggled to overcome religious based internalized homophobia and societal condemnation, access to competent and supportive therapists was crucial.  Yet even with good medical insurance, coverage for mental health therapy was greatly limited and significant out of pocket costs were part of receiving the assistance I needed.  One can only hope that the nightmare that Creigh Deeds experienced and his personal testimony will push the Virginia General Assembly to do the right thing and (i) allocate more money for mental health care and (ii) force insurers to afford increased coverage for this much needed  segment of health care.

A sincere thank you to Creigh Deeds for speaking out so that the tragedy that happened to his son and his family hopefully does not happen to anyone else!