“Alabama Chief Justice Screwed 66 Judges”: Side With Roy Moore Or Side With The Law
Defying history, the law, and common sense, Alabama Chief Justice Roy Moore has issued an order prohibiting Alabama probate judges from issuing marriage licenses to same-sex couples.
Those judges now face a choice between disobeying the law of the land and disobeying their boss. Moore issued his law not as chief justice, but in his administrative role as head of the Alabama court system.
This is not Justice Moore’s first Hail Mary in the lost cause against gay marriage—and he’s not alone. All over the country, activists and law professors are wasting paper on fatuous proclamations that Obergefell v. Hodges is not really the law of the land, or is illegitimate because it’s so horrible, or is somehow, some way not as binding as the Supreme Court said it was (PDF).
Roy Moore is just the only one who’s a state supreme court justice.
As with Moore’s past efforts to delay the inevitable, today’s order was a mélange of the sensible and the risible.
On the sensible side, Justice Moore does have some law on his side—in fact, three extremely narrow, technical threads on which he hangs his order.
First, technically speaking, Obergefell only bound the five states that were a party to it. Since Alabama was not one of those states, technically its law is caught in limbo. Second, the Alabama Supreme Court upheld its same-sex marriage ban on March 3, 2015.
And third, injunctions stemming from two federal cases challenging the ban are, as gellMoore opined last February (PDF), only binding on the executive branch, not the judicial branch—which includes probate judges. This appears to have been an oversight, the result of a pleading error by one of the parties. But rather than extend them in a common-sense way, Moore chose to restrict them in a nonsensical one.
So, as three hyper-technical matters of law, Obergefell doesn’t govern, the Alabama case stands, and the federal injunction doesn’t apply.
But that’s where it all becomes laughable—if not outright dishonest.
It is completely obvious that the Obergefell decision does, indeed, govern all 50 states. The logic it applied to Michigan is equally applicable to Alabama. That’s why LGBT activists broke out the champagne last June. It’s also why judges and clerks around the country, with only a handful of exceptions like Kim Davis, have applied the law and granted same-sex marriage licenses for months now.
Even the cases upon which Moore relies, in fact contradict him. For example, Moore cites an Eighth Circuit case decided on Aug. 11 that said “The [Obergefell] Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not Nebraska.” But that case affirmed, not rejected, the right to same-sex marriage in Nebraska, and forbade Nebraska from blocking it while the court case wound down to its inevitable conclusion.
This happens all the time. When the Supreme Court rules on an issue, it does not automatically end all the cases that deal with it. But it does make their outcomes obvious. So, while the legal matters are formally resolved, lower courts issue or stay injunctions in light of the Supreme Court ruling.
For example, when the Supreme Court outlawed miscegenation bans in 1967, those bans technically remained on the books in 16 states, and many were not repealed until quite recently. But courts immediately issued injunctions forbidding the enforcement of those laws.
To take another example, many of the sodomy laws at issue in Lawrence v. Texas are technically still on the books. But courts everywhere have prohibited their enforcement.
Obergefell, obviously—laughably obviously—is similar. As the Supreme Court wrote, “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them… The State laws challenged by Petitioners in these cases are now held invalid.”
Yes, as Justice Moore italicizes in his order, only “the State laws challenged… in these cases” were invalidated last June. But the rest of that paragraph obviously applies to all same-sex couples everywhere. There is no distinction between those in Alabama and those in Michigan, and so the legal outcome of the Arizona cases is a foregone conclusion. To cherry-pick one clause from the entire paragraph is, at best, facetious.
And it’s not unlike the way Moore cites that Nebraska case: snipping out two words that support his position, and ignoring all of the context.
Where the laughter stops, though, is in Alabama’s 66 probate court offices. These judges and their clerks are, with only a handful of exceptions, loyal public servants who are trying to do their jobs. Many of them personally oppose gay marriage, but recognize that they’ve sworn oaths to enforce the Constitution, not the Bible. What the hell are they supposed to do now?
Perhaps the worst part of Moore’s odious order is when he cites the “confusion” among Alabama judges, as if that confusion simply arose on its own somehow. In fact, he sowed it himself, with his court- and common-sense-defying orders last February, and he has watered those seeds with his absurd hair-splitting today.
Of course, Moore’s order will be rendered null and void, hopefully expeditiously, by a federal court in Alabama formally closing the same-sex marriages cases still pending, or extending the injunctions in them to judicial as well as executive employees. The tide of history will not be turned.
But in the meantime, not only has Moore demeaned every married couple in Alabama, straight and gay, he has also thrown his own employees under the bus. If I were a probate judge in Birmingham, I’m not sure what I would do tomorrow morning.
Roy Moore’s symbolic snatch of demagoguery may play well at the polls someday. But in the meantime, he has disrespected Alabama’s LGBT citizens, disrespected the rule of law, and disrespected all those doing their best to enforce it.
By: Jay Michaelson, The Daily Beast, January 7, 2015
“A Symbiotic Relationship”: How The NRA And Gun Manufacturers Work Together To Scam Gun Owners
If you took gun advocates at their word, you might think they’re enormously displeased when President Obama discusses measures like the expansion (or if you like, clarification) of the background check system that he announced on Tuesday. But the truth is this: When Obama talks about guns, the National Rifle Association couldn’t be happier. When Republican politicians decry Obama’s moves as a dire threat to Second Amendment rights (“Obama wants your guns” declares a web page the Ted Cruz campaign set up in response, portraying the president as some kind of quasi-fascist commando presumably about to kick down your door), they smile in satisfaction. That’s because the NRA and the gun manufacturers are in a symbiotic relationship, where they both benefit whenever guns become a political issue.
For the NRA, it’s about members and money. For the gun manufacturers, it’s about sales and protection from legal liability. And as long as gun owners are kept agitated, angry, and afraid, they both win.
Here’s how it works. There’s a mass shooting, then President Obama suggests we really need to do something about gun violence. Maybe he has a specific proposal as he did this week, or maybe he doesn’t. But the details don’t matter. Immediately, the NRA condemns him and other Democrats, then shouts, “They’re coming for your guns!” to its members, and all gun owners. A healthy chunk of those gun owners respond by rushing down to the gun store to buy more guns, lest they miss their chance before Obama comes to take them away. The threat always turns out to be imaginary; more background checks wouldn’t stop anyone legally authorized to buy a gun from doing so, let alone take away guns people already own. But no one seems to notice that the NRA is the boy who cried “wolf” again and again. Within a month or two, the cycle will repeat itself.
The NRA gets tens of millions of dollars from gun manufacturers, through a variety of channels, not just checks but advertising in NRA publications and special promotions the manufacturers run. For instance, every time someone buys a Ruger, the company donates $2 to the NRA. Buy one from Taurus, and they’ll pay for a year’s membership in the NRA.
And even though the relationship isn’t always perfectly friendly — the NRA has organized boycotts of manufacturers it felt weren’t towing the properly extreme line on regulations — with the NRA’s help, there’s never been a better time to be in the gun business. Gun sales are booming, and 2015 was the best year yet. We can use FBI background checks as a proxy for sales (even though many sales don’t require a background check), and last year, the agency performed a record 23 million checks. That has more than doubled just since 2007, which was by sheer coincidence the year before Barack Obama got elected.
What’s particularly remarkable about this increase in gun sales is that it comes at a time when gun ownership is on a long, steady decline. With fewer Americans living in rural areas and hunting no longer as popular a recreational activity as it once was, far fewer Americans own guns today than a generation or two ago. According to data from the General Social Survey, in 1977, 50 percent of Americans said there was a gun in their home; by 2014 the number had declined to 31 percent. That’s still a lot, of course, but given the demographics of gun ownership — among other things, members of fast-growing minority groups like Hispanics are far less likely to own guns — the downward trend will probably continue.
The numbers tell the story of a transformation in gun culture, from many more people owning a gun or two (often a rifle or a shotgun) to a smaller number of owners each buying many more guns, mostly handguns. And this is just what the NRA encourages, by feeding twin climates of fear. First, the organization, particularly its chief Wayne LaPierre, regularly describes America as a kind of post-apocalyptic hellscape right out of Mad Max, where only the armed can survive. As he wrote in a 2013 article, “Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals. These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.”
Second, the NRA cries that no matter what’s going on in the political world, it portends an imminent massive gun confiscation. President Obama wants more background checks? Nope, he’s really coming to take your guns. There’s an election coming up? If Democrats win, they’re going to take your guns. You shouldn’t just have a gun, you should have lots of guns, and you should buy more right now because you never know when the government are going to send their jackbooted thugs to invade your home and take them away.
What do you call the frightened, paranoid, insecure guy having a midlife crisis who prepares for the inevitable breakdown of society and shakes his fist at the president? You call him a customer. He’s the one who responds to every “urgent” appeal from the NRA to donate a few more dollars and go buy another rifle or handgun or two, while the manufacturers watch their profits rise and their stock prices soar. He’s money in the bank.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Week, January 7, 2016
“A President Cries, And The NRA Trembles”: A President Taking On The Gun Lobby That Has Held Our Country Hostage
Two of my closest friends are also my steadfast movie companions. It is our habit, whenever possible, to sit in the same row of our favorite theater.
We’ve been doing this for years, but during our most recent excursion, one of them quietly asked during the previews, “When we sit here, do you ever think a man with a gun–.”
Her wife and I didn’t even let her finish her sentence as we started to nod.
“That we would be the first to be shot?” one of us asked.
“That we would die?” the other asked.
Oh, yeah, we all agreed. We think about that.
This is an absurd mental exercise on our part. As Plain Dealer Editor George Rodrigue III wrote in a recent column in my hometown of Cleveland, “If you lived in America last year you were less likely to be shot by an Islamic terrorist than by a toddler.” This is just as true about the likelihood of being gunned down by a homegrown terrorist shooting up a movie theater.
We know this, my friends and I, but there we were anyway, imagining the rain of bullets. I am embarrassed to admit to this, in part because such fear is so irrational but also because it suggests the right-wing fearmongering has had its way with me, a lifelong liberal. Only for a moment, mind you, but it’s the sort of lapse in rational thinking that can eat away at you if you aren’t vigilant. Before you know it, you’re parroting talking points from the National Rifle Association, which acts more like a mob syndicate than it does a lobbying organization.
Right after New Year’s, President Barack Obama signed 23 executive orders designed to address gun violence, including tightening loopholes on who can sell guns and who is allowed to buy them. As The New York Times duly noted, these are guidelines, not binding regulations, and the president will face “legal, political and logistical hurdles that are likely to blunt the effect of the plan he laid out.”
That’s a gentler way of saying the gun zealots and the Republicans who pander to them are acting as if the devil just galloped into town to lasso the whole bunch of them and drag them back to hell. Not a wholly unpleasant scenario to imagine, but it has nothing to do with the president’s plan.
Republican right-wing propagandist Ted Cruz said: “We don’t beat the bad guys by taking away our guns. We beat the bad guys by using our guns.”
If he weren’t serious, he’d be hilarious. It’s so easy to imagine all 5 feet 8 inches of him standing there in the dirt with spurs jingling as his hands hover over the Colts in the gun belt slung around his hip-huggers.
I can’t even.
House Speaker Paul Ryan said that “rather than focus on criminals and terrorists, (President Obama) goes after the most law-abiding of citizens. His words and actions amount to a form of intimidation that undermines liberty.”
I am so tired of these men thinking we’re this stupid. Every credible poll shows that the overwhelming majority of Americans want gun reform. In October, for example, a CBS News/New York Times poll found that 92 percent of Americans favor background checks for all gun buyers. That included 87 percent of Republicans who were polled.
The NRA, preferring to channel the voices in its collective head, claimed otherwise this week. NRA spokeswoman Jennifer Baker, in a statement to Fox News: “President Obama failed to pass his anti-gun agenda (through) Congress because the majority of Americans oppose more gun-control. Now he is doing what he always does when he doesn’t get his way, which is defy the will of the people and issue an executive order.”
Hear that? That’s fear talking. For the first time in a long time, the NRA hears the American people pounding on a door it doesn’t want to open. So of course, it declined to participate in the president’s town hall on guns with CNN’s Anderson Cooper.
At his White House news conference Tuesday, the president began to cry when he started talking about the victims of school shootings.
“Our right to peaceful assembly, that right was robbed from moviegoers in Aurora and Lafayette,” he said. “Our unalienable right to life and liberty and the pursuit of happiness, those rights were stripped from college kids in Blacksburg and Santa Barbara and from high schoolers at Columbine and from first-graders in Newtown — first-graders — and from every family who never imagined that their loved one would be taken from our lives by a bullet from a gun. Every time I think about those kids, it gets me mad.”
Many right-wing pundits and lollygaggers on social media mocked the president for his tears. This disrespect outraged a lot of President Obama’s supporters, but it made me feel optimistic about gun reform for the first time in years.
Who mocks a man for showing the same hollowed-out grief most of us feel when we think of those babies being gunned down? Who makes fun of a president standing tall with the majority of his citizens?
Scared people, that’s who. The ones who are trembling in their boots because, finally, we have a president willing to take on the gun lobby that has held our country hostage for far too long.
By: Connie Schultz, Pulitzer Prize-Winning Columnist; The National Memo, January 7, 2016
“The Cries Of Tyranny”: Hey, NRA And Republican Stoolies: Obama’s Not The Tyrant Here
On Tuesday, after three years of trying to convince recalcitrant Republican legislators frozen in perpetual genuflection before arms dealers to pass responsible gun-safety legislation, President Obama did the next best thing. He offered a well-thought-out, well-vetted series of executive orders to expand background checks on gun sales, clarifying who is “in the business” of selling firearms.
Additionally, these measures aim to expand research on smart-gun technology, require reporting of guns lost in transit between manufacturer and dealer, facilitate the hiring of more FBI agents to process background checks, and improve the NICS background-check system.
You know, some real Pinochet-level, authoritarian shit.
Or at least you’d think that from the reactions of Republican stoolies running for president and American Politburo members cowering in fear that the 99 percent reelection rate of their ilk might somehow forget to include them. In other words, those craving easy National Rifle Association campaign checks like a quick fix behind the Capitol and/or future shovel-ready NRA jobs and/or speaking fees for past sucking up.
Their reaction—in a degeneration of Cesare Beccaria’s theory on crime and punishment—was swift, severe…and stupefied. Sure, it’s no surprise to anyone paying even the scantest attention to politics. Even impartial and conservative observers have wondered whether this once great party can continue to operate when its leaders seem to have mass-shotgunned The Blood of Kali. But coming from these poor (mostly) white souls, the cries of tyranny when the president is doing something 90 percent of Americans (and 85 percent of gun owners) support are rich indeed.
For if you’re looking for real tyranny, look no further than the NRA. Recent weeks have made clear that as it becomes more embattled—i.e., loses—it is moving past mangled euphemisms and apocalyptic prediction to straight-up threatening and encouraging violence against opponents. Sedition, domestic terrorism, call it what you will, but a group that already was about as cuddly as the characters on Fury Road has now shifted into first. For example:
Just four days before the fifth anniversary of the shooting of Arizona Rep. Gabrielle Giffords, the NRA targeted a pair of Brooklyn lawmakers Monday with a menacing image of bullets next to photos of the two gun control advocates.
America’s 1st Freedom, an NRA publication, tweeted the image of state Sen. Roxanne Persaud and Assemblywoman Jo Anne Simon, both Democrats, weeks after they announced legislation aimed at controlling the sale of ammunition.
The two lawmakers and other local supporters—including Mayor de Blasio and Brooklyn Borough President Eric Adams—condemned what came across as a veiled threat.
Cute, right? In case you are feeling charitable, thinking those 1st Freedomers didn’t mean any harm, the NRA promoted another article—decorated with a picture of nooses—suggesting “radical” Democrats will be hanged after they start a civil war over gun rights.
I know, maybe NRA Executive Vice President Wayne LaPierre just drank a bit too much cough syrup the night before. But then why, after some faculty at Bowling Green State University chose to exercise their actual first freedom by petitioning their state representative to oppose a loony open-carry bill, did an NRA affiliate in Ohio choose to do this:
Recently, the Buckeye Firearms Association went a step further and blasted criticism at Bowling Green State University faculty members who had written to State Rep. Tim Brown, R-Bowling Green, asking him to not support legislation allowing concealed carry of firearms on Ohio college campuses. House Bill 48, which has since passed the House, allows hidden loaded weapons to be carried on college campuses, school safety zones, day care facilities, public areas of airport terminals, police stations, and certain government facilities…
The Buckeye Firearms Association went on to publish the names and email addresses of BGSU faculty who contacted Brown with their comments, plus a photograph of [geology professor James] Evans, who had used his private email to send his comments. The result, at least for Evans, was a rush of emails to him from the association’s members, with wording that he characterized as threatening.
Let’s not even bother with NRA board member Ted Nugent’s public threats against the president of the United States, after which the Secret Service felt it necessary to pay him a visit. And notice we haven’t even touched upon the Fabulous Bundy Boys, who’ve chosen to go through their midlife crisis not by buying a Porsche or going to a strip club but holing up in the Malheur National Wildlife Refuge in Oregon waving guns and crying government tyranny.
Obama has done what any human president would do, upon watching the slaughter of his country’s civilians in the real world, while Y’all Qaeda and Yokel Haram stockpile guns for the coming episode of The Running Man because they’ve run low on Olanzapine. These are background checks, plain and simple, and they still won’t go as far as needed without Congress.
Tyranny would be letting terrorists, criminals, cowardly domestic abusers, and the dangerously mentally ill continue murdering and maiming scores of people every day because the most puerile, thick-skulled 10 percent of our society can’t understand statistics and fear the monsters on Maple Street.
By: Cliff Schecter, The Daily Beast, January 6, 2016
“Politicians Protecting Themselves”: Ideology And Polarization Are Trumping All Of The Old Rules Of Politics
If you need convincing that 2015 wasn’t just an “outlier” of a year in American politics, where all of the old rules seemed to fly out the window, please read Mark Schmitt’s fascinating piece in the New York Times earlier this week that examines the rapid decline of some of the bedrock principles of political behavior we all used to take for granted. You cannot, he concludes, blame any of this weirdness on Donald Trump; it’s preceded his rise for a good while.
He may be changing the rules of the presidential primary race, but in the halls of Congress and in governors’ mansions across the country, politicians have already acted in ways that would have been unimaginable a decade ago. By testing and breaking the rules, they have been reshaping the practice of politics since long before Mr. Trump emerged.
Members of Congress, Schmitt observes, are showing unprecedented independence from their own constituents, and so, too, are state elected officials. In both cases they are beginning to refuse to “bring home the bacon” if they dislike the ideological provenance of the cook:
[S]everal members even announced in 2013 that they would not assist constituents with problems involving the Affordable Care Act. The idea of not just neglecting but actively refusing constituent services, for reasons of ideology, would be unimaginable to the constituent-focused members of Congress of both parties elected beginning in the 1970s.
Governors, too, rejected everything from infrastructure spending to federal funding for Medicaid expansion. Even when they saw their approval ratings drop into the 30s, they survived. In 2011, Rick Scott of Florida rejected $2.4 billion in federal funds for a commuter rail project and yet got reelected.
The widespread expectation that red states would accept the Medicaid expansion once the Supreme Court made it voluntary, as a deal too good to refuse, is an example of the old conventional wisdom. In nearly half the states, ideology trumped helping constituents access available funds and services.
Schmitt believes that predictable partisan voting patterns and special-interest pressure have combined with ideology to all but kill the once-reigning assumption of American politics: the “median voter theorem,” which held that politicians of both parties would inevitably cater to the interests of swing voters in the middle of the ideological spectrum in the pursuit of a majority. It’s the basis of the still-common belief that in competitive contests candidates have to “shift to the center” to win general elections no matter how much time they spend “pandering to the base” in primaries. If, however, an ever-higher percentage of voters simply and reflexively pull the lever for the party with which they identify, then keeping them motivated enough to vote — perhaps by negative attacks on the hated partisan foe — becomes far more important than appealing to an ever-shrinking number of “swing voters.” Eventually, as Schmitt suggests, the whole idea of accountability to voters begins to fade, as pols try to figure out how to protect themselves via gerrymandering and oceans of special-interest money.
[B]y recasting politics as a winner-take-all conflict between wholly incompatible ideologies and identities — as most of the presidential candidates have done — they help to closely align party and ideology, so that those who identify as Republican will always vote Republican and vice versa. When politicians know more or less who will vote and how, they can ignore most voters — including their own loyalists.
Schmitt attributes a lot of these trends to the conquest of the GOP by conservative ideologues, but also notes that the declining competition for median voters has liberated Democrats — themselves less constrained by a conservative minority that barely exists anymore — to think bigger and bolder thoughts about the role of government than they have at any time since the Great Society era. So judging the new rules of politics as a good or a bad thing will most definitely depend on one’s own ideological perspective.
If Donald Trump didn’t cause the fading of the old political order, is he nonetheless benefiting from it? Quite probably so, in that he is the living symbol of spitting defiance to the belief of Republican elites that the median voter theorem required a less viscerally angry and culturally reactionary GOP. Indeed, political observers view Trump as strange and scary precisely because the old rules that would have consigned him to the dustbin of history don’t seem to be in operation anymore. We’d better all lower our resistance to the unexpected.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, January 6, 2015
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