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“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

January 8, 2016 Posted by | Alabama Supreme Court, Marriage Equality, Roy Moore | , , , , , , , , | 2 Comments

“A Longstanding Framework”: What The Republican Party’s New, Unspeakably Racist Attack Ad Is Really About

The National Republican Congressional Committee wants you to believe that Nebraska state Sen. Brad Ashford, the Democratic challenger to incumbent Rep. Lee Terry (R-NE), unleashed a very scary looking black man on the people of Nebraska to commit multiple murders. That’s the message conveyed by an ad they posted on their YouTube page on Friday, which focuses on a series of high profile murders committed by a man who had recently been released from prison on unrelated charges:

The reality, however, is far more nuanced than the narrative presented by this ad. And the events that led up to these murders have very little to do with Ashford.

Nikko Jenkins is a severely mentally ill man who was previously incarcerated on robbery and assault charges. A prison psychiatrist diagnosed him with schizophrenia and post-traumatic stress disorder, and labeled him “one of the most dangerous people I have ever evaluated.” While he was incarcerated, Jenkins repeatedly told prison officials that he “planned a violent, murderous rampage upon his release.” Less than a month after he was released from prison in 2013, Jenkins carried out his threats, killing four people in Omaha.

Jenkins believes that he was ordered to kill by Apophis, an evil, ancient Egyptian serpent god. A report by the Nebraska State Ombudsman’s Office criticized state prison officials for not attempting to have Jenkins committed due to his mental illness once it became clear that it was not safe to release him from prison.

The NRCC’s ad, however, tells a very different story. In the GOP’s narrative, “Nikko Jenkins was released from prison early, after serving only half his sentence” thanks to a law that Ashford supports.

The law at issue is the state’s “good time” law, which has existed in various forms for nearly half a century. Under the good time law’s framework, prisoners earn “good time” for the time that they spend in prison, and this good time is counted against the time that they need to serve behind bars. Meanwhile, prisoners who commit various offenses can lose their good time — Jenkins for example, lost 18 months of good time for offenses that included an assault upon a prison guard. Thus, the law gives prison officials some flexibility to release inmates who behave well while incarcerated, while requiring other prisoners to serve more time.

Under a 1992 amendment to the good time law that overwhelmingly passed the state legislature, prisoners earn one day of good time for each day they spend in prison — that’s the likely basis for the GOP’s claim that Jenkins served “only half his sentence” (Ashford was a member of the state legislature when this amendment was enacted, but he was not present for the vote). In 2011, the state’s Republican Gov. Dave Heineman successfully lobbied the legislature to increase the amount of good time earned by inmates even further. This 2011 amendment was proposed by Heineman’s own Corrections Department. Ashford cosponsored this bill.

In the wake of the Jenkins incident, Heineman has reversed course, and he now wants to make it harder for inmates to earn good time. He’s also attacked the Ombudman’s report which suggested that the Corrections Department was at fault for freeing Jenkins. Ashford, by contrast, has defended the report — though he also endorsed Gov. Heineman’s decision to increase the amount of good time corrections officials can take away from inmates who commit serious offenses.

So the reality is that Nebraska has a longstanding framework of relatively long prison sentences that are moderated by the good time law. Ashford has only played a minor role in shaping this framework, and the 2011 amendment that Ashford co-sponsored enjoyed the enthusiastic support of the state’s GOP governor. There is now an important debate going on in Nebraska about whether the state’s good time law should be amended once again, as Heineman argues, or whether the errors which led to Jenkins being released are best addressed within the Corrections Department, as Ashford appears to believe.

But it is absurd to suggest, as the GOP ad does, that Ashford is responsible for Jenkins’ release and the tragedy that soon followed. If his support for the state’s good time law makes Ashford responsible for Jenkins’ crimes, then Heineman and numerous other state lawmakers share that blame.

 

By: Ian Millhiser, Think Progress, October 17, 2014

October 19, 2014 Posted by | NRCC, Politics, Republicans | , , , , , , , | Leave a comment

“The Two GOP Establishments”: Two Groups That, In The End, Differ Little On What They Would Do With Power

The language commonly used to describe the battle going on inside the Republican Party is wrong and misleading. The fights this spring are not between “the grass roots” and “the establishment” but between two establishment factions spending vast sums to gain the upper hand.

Their confrontation has little to do with the long-term philosophical direction of the GOP. Very rich ideological donors, along with tea party groups, have been moving the party steadily rightward. Political correctness of an extremely conservative kind now rules.

This explains the indigestion some Republican politicians are experiencing as they are forced to eat old words acknowledging a human role in climate change. It’s why party leaders keep repeating the word “Benghazi” as a quasi-religious incantation, why deal-making with President Obama is verboten and why they stick with their “repeal Obamacare” fixation.

The accounts of Tuesday’s Republican primary in Nebraska for an open U.S. Senate seat are revealing. Ben Sasse, a university president who held a variety of jobs in George W. Bush’s administration, won it handily. His success was broadly taken as a triumph for the tea party, which just a week ago was said to have suffered a defeat in North Carolina. There, Thom Tillis, the speaker of the state House of Representatives and the so-called establishment candidate, faced opponents perceived to be to his right. Yet Tillis will be one of the most right-wing candidates on any ballot this fall.

The more instructive way to look at the Nebraska result was suggested by a Wall Street Journal report on the outcome by Reid Epstein. Sometimes, news stories are like good poems that convey meaning through artful — if not always intentional — juxtaposition.

Epstein noted that Sasse was “backed by more than $2.4 million in ad spending, either praising him or attacking his opponents, from organizations such as the small-government Club for Growth and the Senate Conservatives Fund, which targets Republicans it deems insufficiently conservative.”

Yet in the very next paragraph, Epstein quoted a Facebook post from Sen. Ted Cruz, the tea party hero who supported Sasse. The Texas Republican declared that “Ben Sasse’s decisive victory is a clear indication that the grass roots are rising up to make D.C. listen.”

So, is this really the grass roots speaking to Washington? Or is it more accurately seen as a cadre of conservative groups, largely working out of Washington, rising up with a ton of cash to persuade voters to listen to them? It’s hard to see Nebraska’s primary as a mass revolt. The Nebraska secretary of state’s Web site reported Wednesday morning that primary turnout (in both parties) came to 316,124 out of 1,152,180 registered Nebraskans. Sasse won with around 110,000 votes.

The grass-roots claim becomes more problematic when you consider that Sasse has rather a lot of Washington experience while one of his opponents, former state treasurer Shane Osborn, was the favorite of many Nebraska tea party groups. As Jim Newell noted in an insightful piece in Salon, FreedomWorks, one of the Washington-based operations that latched onto the tea party early, initially endorsed Osborn but switched to Sasse. The stated reason for the turnabout was the support Osborn got from Senate Minority Leader Mitch McConnell who, for the time being, is cast by some on the right as an enemy.

Needless to say, the local tea party faithful who preferred Osborn resented the machinations of the big money groups headquartered in the nation’s capital, whose competition resembles nothing so much as a “Game of Thrones” power struggle.

As for Sasse, his victory speech, as the conservative blogger Matt Lewis pointed out, made him sound more like the next Jack Kemp, the late conservative famed for his compassionate inclinations, than the hard-edged Cruz. Sasse’s triumph reflected his skill at bringing the two GOP establishments together — he’s the George W. guy with Harvard and Yale degrees whom Sarah Palin liked. The 42-year-old is on the verge of becoming the GOP’s next new thing.

Thanks to Supreme Court decisions opening the way for unlimited and often anonymous campaign contributions, we are entering a time when “follow the money” is the proper rubric for understanding the internal dynamics of the Republican Party. Washington-based groups tied to various conservative interests and donors will throw their weight around all over the country, always claiming to speak for those “grass roots.” Primary voters will be left with a choice between two establishments that, in the end, differ little on what they would do with power.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, May 14, 2014

May 20, 2014 Posted by | GOP, Republicans, Tea Party | , , , , | 1 Comment

“Flirting With Catastrope”: Nebraska GOP Senate Candidate, “Destroy The Constitution Or I’ll Destroy The Economy”

Yesterday, Nebraska GOP primary voters nominated dark horse candidate and state Sen. Deb Fischer as their candidate for an open U.S. Senate race this November. In choosing Fischer, the Nebraska GOP aligns itself with a candidate who recently called for a very high stakes game of chicken — flirting with economic catastrophe in order to force Congress to permanently enshrine Tea Party fiscal policy into the Constitution.

During last year’s debt ceiling crisis, which Speaker John Boehner has threatened to repeat next year, House and Senate Republicans threatened to force the United States to default on its debt — an outcome that would have caused “a bigger GDP drop than that experienced during the Great Recession of 2008″ — unless President Obama agreed to an increasingly escalating series of demands for austerity. Even after this campaign of extortion forced the White House to make significant concessions, Fischer indicated that she would have simply let the economy blow up because Congress didn’t also agree to a constitutional amendment:

Nebraska’s 2012 Republican Senate candidates turned thumbs down Monday on the compromise debt reduction plan agreed to by the White House and congressional leaders.

I would vote no on this specific bill because Congress needs to pass a balanced budget (constitutional) amendment first,” said state Sen. Deb Fischer of Valentine.

It’s not clear which version of the balanced budget amendment Fischer is referring to here, but even the mildest forms of such an amendment are terrible ideas because they prevent the United States from responding to economic downturns or unexpected disasters, while simultaneously turning control of the nation’s budget over to unelected judges who are ill-equipped to handle it.

Moreover, at the time that Fischer endorsed blowing up the economy unless Congress votes to change the Constitution, the leading Republican proposal for such an amendment imposed such draconian spending cuts that it would “throw about 15 million more people out of work, double the unemployment rate from 9 percent to approximately 18 percent, and cause the economy to shrink by about 17 percent instead of growing by an expected 2 percent.” The lead sponsor of this plan to trigger a new Great Depression, Sen. Mike Lee (R-UT), also called for forcing a debt default unless Congress gives him everything he wants.

In other words, while little is known about the obscure state lawmaker who wants to join the United States Senate, her willingness to play chicken with America’s prosperity strongly suggests that she would line up with the most hardline members of the Republican caucus.

 

By: Ian Millhiser, Think Progress, May 16, 2012

May 17, 2012 Posted by | Election 2012, Senate | , , , , , , , | Leave a comment

Nebraska Revives “Justifiable Homicide” Bill To Protect Fetuses

Remember that bill in South Dakota a year ago that would have redefined “justifiable homicide” in a way that could have made killing abortion providers legally defensible? South Dakota had the good sense to shelve it, but then Nebraska brought it back. Now it appears the Cornhusker State is at it again.

RH Reality Check flagged the revival of the bill, which was debated in the Nebaska Senate judiciary committee this week:

Senator Mark Christensen introduced the legislation. He stated in committee that the bill would “make it clear that an individual may use force to protect an unborn child under the same circumstances that an individual may use force to protect any third person as currently provided under the law.”

The piece also quotes from the statement of state Sen. Brenda Council, a member of the committee. She noted that in the 2009 incident in which an anti-abortion extremist killed Kansas doctor George Tiller, the assassin attempted to use exactly this type of “justifiable homicide” argument:

Under your amendment, a person who believes that someone who was assisting a woman to obtain an abortion is threatening the life of the unborn child and would use that as a self-defense argument   I am certainly aware of the case where that argument was made by an individual who shot and killed a doctor who was known to provide abortion services. And his self-defense argument was: I was protecting the unborn child, and I have a right if I believe that unborn child’s life is being threatened.

 

By: Kate Sheppard, Mother Jones, March 1, 2012

March 2, 2012 Posted by | Abortion, Women's Health | , , , , , , , | Leave a comment

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