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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

“An Analogy Offered With A Nudge And A Wink”: Is Bernie Sanders A Nazi? On Our Epidemic Of Bad Analogies

The internet rewards hyperbole. Maybe that’s why bad — incendiary, wildly inaccurate — analogies seem to be spreading throughout the media landscape, and especially on the right.

Analogies are an indispensable tool of reasoning and rhetoric, highlighting similarities between two or more things, people, or events. But deploying analogies can be complicated, since the things, people, or events being compared are invariably dissimilar in a multitude of ways. The trick in deploying an analogy effectively is to highlight a similarity that reveals something important and underappreciated about the main thing, person, or event. The key to making a mess of an analogy is drawing a comparison in which the dissimilarities are so vast that they overshadow and even undermine the comparison altogether.

Consider Kevin Williamson’s much-discussed article from National Review calling Democratic presidential candidate Bernie Sanders a Nazi. Now, Williamson doesn’t actually use the term Nazi. But he does say that Sanders “is, in fact, leading a national-socialist movement.” Just in case readers failed to make the link to the National Socialist movement led by Adolf Hitler, Williamson immediately concedes that it’s “uncomfortable” to draw such a comparison about “a man who is the son of Jewish immigrants from Poland and whose family was murdered in the Holocaust.” Still, Williamson insists, “there is no other way to describe his view and his politics.”

It turns out, though, that what Williamson really means is not that Sanders dreams of world military conquest and the extermination of Jews and other inferior races in the name of Aryan purity — you know, like an actual National Socialist. What Williamson really means is that Sanders is both a socialist and a nationalist. Which makes him “a national socialist in the mode of Hugo Chávez.”

Oh, that kind of national socialist.

By the time we come to this big reveal toward the end of Williamson’s article, it’s impossible not to feel manipulated, even duped, by the “national socialist” analogy that forms the backbone of the story — because the author utterly failed, and never even really intended, to demonstrate a relevant similarity between Sanders’ campaign and the fascist political movement that swept Germany in the 1930s and went by the name of National Socialism.

The Williamson article is somewhat unusual in that its core analogy is offered with a nudge and a wink. Other conservatives draw their inflammatory comparisons with complete sincerity.

Perhaps no recent event has inspired more spurious analogies than the Supreme Court’s defense of a constitutional right to same-sex marriage in Obergefell v. Hodges. The decision has inspired some defenders of traditional marriage to call Obergefell the Dred Scott decision of our time (because, like Dred Scott, Obergefell was supposedly an act of lawless judicial usurpation that subverted the democratic will of the people).

Others have likened Obergefell to Roe v. Wade, the 1973 decision that declared a constitutional right to abortion and ended up conjuring the national pro-life movement into existence. Still others have described a future in which the “Gestapo” will begin knocking on the doors of those who oppose same-sex marriage, or compared life for conservative Christians post-Obergefell to life under “the lie” of communist totalitarianism.

Let’s take these one at a time:

Unlike Dred Scott, Obergefell and same-sex marriage enslave no one. Moreover, whereas upholding the rights of slave owners led to immediate and total loss of liberty for large numbers of human beings, opponents of same-sex marriage have had a difficult time demonstrating to courts that granting the right to marry to the nation’s tiny population of homosexuals, in itself, does any measurable harm at all to those who define a marriage in traditional terms. (As for the harms to the exercise of religious freedom that may well follow from Obergefell, they are not a direct consequence of same-sex marriage itself but are rather a product of an anticipated expansion of the nation’s anti-discrimination laws to cover gay marriage. This complication is obviously something obscured by the Dred Scott analogy, as is the likely prospect of legislating carve-outs from anti-discrimination laws for religious organizations.)

Unlike with the consequences of Roe, no one can plausibly claim that a person is killed as a result of exercising the right proclaimed by Obergefell. That would seem to render the comparison somewhat lacking in cogency. (It also points to why the constitutional triumph of same-sex marriage is exceedingly unlikely to spark powerful, enduring grassroots opposition like the pro-life movement.)

The Gestapo? You’ve got to be kidding. Let me know when the secret police begins pounding on your door, and I will pledge my life, fortune, and sacred honor to prevent you from being sent to a concentration camp for your traditionalist Christian beliefs. But until that time, please get a grip. Outbursts like that only make you look paranoid, self-pitying, and bizarrely out of touch with both present American reality and the bloody history of real political oppression.

As for the analogy to communism, the same admonition applies. Even in the realistically worst-case scenario predicted by opponents of same-sex marriage — the forced compliance of religious schools and other church-affiliated institutions with anti-discrimination laws protecting gay marriage; the loss of tax-exempt status for churches — the United States would resemble contemporary France far more than the Soviet Union. The advent of French-style ideological secularism (laïcité) in the U.S. would mark a significant (and in my view unwelcome) change, including a significant constriction of religious freedom from historic American norms. But that’s a far cry from totalitarianism. (Last time I checked, France was a liberal democracy, albeit one with a somewhat different understanding of the proper relation between church and state.)

I could go on, pointing to other false comparisons deployed by the right. (Keeping up with neoconservative invocations of Munich, 1938 could be a full-time job all on its own.) But it would be a mistake to think that liberals never make unconvincing analogies. As far as many conservative Christians are concerned, the entire effort to portray opposition to same-sex marriage as equivalent to opposing interracial marriage is profoundly misleading. And they have a point. (Allowing people of the same sex to marry is a much more radical change to the institution than opening marriage to men and women of different races — and the sexual morality wrapped up with male-female marriage is far more deeply intertwined with the theological traditions of Western Christianity than racialized theories of matrimony ever were.)

The point is that politicians and commentators on both sides of the aisle do themselves no favors by drawing false analogies. It’s a form of hype — sloganeering used in place of reason. Sometimes, as with the purported parallel between interracial and same-sex marriage, a weak analogy succeeds as propaganda. But more often, the analogy persuades no one who wasn’t already convinced.

In such cases, argument and evidence will always have a greater likelihood of prevailing. Accept no substitutes.

 

By: Damon Linker, The Week, July 23, 2015

 

By: Damon Linker, The Week, July 23, 2015

July 27, 2015 Posted by | Bernie Sanders, Media, Nazis, Socialism | , , , , , , , | 2 Comments

“Blowing With The Winds”: Conservatives Love Scott Walker’s Anti-Gay Transition

Scott Walker has his groove back with social conservatives and he has the Supreme Court to thank.

After the court ruled that the Constitution guarantees same-sex couples the right to marry, Walker released a statement calling for a constitutional amendment to let states define marriage as between one man and one woman. Social conservatives loved it, and it came at a moment when he needed all the love he could get.

Back in May, the Wisconsin governor traveled to Washington to meet with a bevy of leaders from the party’s more conservative wing.

And in that meeting, there were lots of Walker skeptics.

Penny Nance—the president of the influential conservative group Concerned Women for America—emailed to The Daily Beast after that meeting to say she still wasn’t convinced Walker was a strong enough opponent of same-sex marriage.

“I think people are still trying to discern” his position, she wrote.

His list of confusing comments about the issue over the years made it a little tricky for some on the right to ascertain his position.

In 2014, for instance, after a district court judge declared that the Badger State’s ban on same-sex marriage wasn’t constitutional, he gave an oddly obtuse answer on the topic at a press conference.

“It doesn’t really matter what I think,” Walker told reporters, per the Milwaukee Journal Sentinel. “It’s in the Constitution.”

Then he refused to clarify his position on the marriage question.

“No,” he said. “I’m just not stating one at all.”

For gay marriage foes, that little exchange didn’t exactly make him a profile in courage.

And it wasn’t the only time he telegraphed a position on the question that was a bit more nuanced than you might expect from, well, a Republican presidential candidate.

In a 2013 interview with Bloomberg, the likely 2016 contender indicated that he could be comfortable with federal legislation protecting LGBT people from workplace discrimination. Walker noted that Wisconsin didn’t let same-sex couples marry, but still afforded them those employment protections.

“There’s a healthy balance there,” he said.

Opponents of same-sex marriage are not interested in finding “a healthy balance,” and they weren’t thrilled with Walker’s comments.

But all this changed on Friday after the Supreme Court ruled that same-sex couples have a constitutional right to wed.

In response, Walker released a statement saying he favored amending the Constitution to let individual states decide whether or not to allow those unions. As The Daily Beast noted at the time, this distinguished him from other top-tier Republican contenders who refused to back changes to the Constitution.

And people noticed. When the Beast asked Nance if Walker’s full-throated support of a constitutional amendment gave her more confidence that he would side with her on the marriage question, she emailed, “Boy has it!”

“In calling for a federal marriage amendment that would allow states to determine their own laws on marriage Walker has put to final rest any questions social conservatives had on his willingness to lead on the matter,” she wrote.

And though Nance—like most activists—doesn’t have a 2016 favorite yet, she said taking a Walker-esque position on marriage is a must.

“Just as Roe made the issue of life central to support for a presidential candidate, the Obergefell decision has hardened our resolve on marriage,” she wrote. “The courts have made them issues that candidates for federal office can no longer duck.”

Brian Brown, the president of the National Organization for Marriage, is in the same boat. He said he was “distraught” with the comments Walker made last year about the overturn of Wisconsin’s constitutional amendment.

“I thought it was a huge mistake,” Brown said. “But ever since then, he has been working very hard to be a leader on the marriage issue.”

He also said that, in his view, Walker has changed his position on marriage, and for the better.

“If we ask people to sign pledges and stand for principles, then when they do it, we can’t second-guess them,” he said. “So I’m ecstatic he’s doing this.”

And Bob Vander Plaats, the president of the Iowa-based conservative group The Family Leader, said he was also delighted with Walker’s endorsement of an amendment.

He said his group was “openly concerned” with some of Walker’s previous comments on marriage, and that the governor’s stance has assuaged those fears.

Asked if he thought Walker had changed his position on how to handle marriage issues, Vander Plaats said, “Yea, without question.”

“I was thrilled to be able to see his response to this opinion,” he said.

Walker aides emailed to say that the governor’s position on the issue hasn’t actually changed, noting that in 1997 as a state legislator, he voted to ban same-sex marriage in the Badger State.

But while Walker’s single-minded opposition to same-sex marriage has won him favor with anti-same-sex-marriage activists, it’s already alienated some big Republican donors.

The Washington Post reported last week that Walker lost the support of one hedge-fund billionaire after having a long argument with him about the issue.

And an insider close with the New York Republican donor community expressed disappointment with Walker’s change of tone on the issue and support for a constitutional amendment, and suggested it could make it harder for him to secure New York Republican donors.

Mary Cheney, an openly gay political consultant who is also Dick Cheney’s daughter, expressed bafflement at Walker’s move.

“From a political perspective, I don’t understand why you would do that,” she said.

 

By: Betsy Woodruff, The Daily Beast, June 30, 2015

July 3, 2015 Posted by | Conservatives, Marriage Equality, Scott Walker | , , , , , , , | Leave a comment

“You’re Not Worthy Of Respect”: Clarence Thomas’s Disgraceful Definition Of Human Dignity

During a break on my reporting trip to Ferguson, Missouri this spring, I visited the museum inside the Old Courthouse, a magnificent, green-domed federal-style building that sits in the shadow of the St. Louis Arch. It houses artifacts and displays relating to the Dred Scott case, tried there in 1847; ten years later, in 1857, the United States Supreme Court would hand Scott—an enslaved man suing for freedom for himself and his family—his final judicial defeat. In arguably the worst decision ever handed down by any American court, in words that are displayed today inside that museum in large, bold, white letters, Chief Justice Roger Taney wrote that African Americans were “beings of an inferior order,” so much so that they had “no rights which the white man was bound to respect.”

Taney’s statement is anathema to the very idea of equality. But he asserted that the Founding Fathers, as indicated in the Constitution itself, would have thought the same of people who looked like Scott, or me. In historical terms, Taney wasn’t far off. The Constitution needed correcting, and it wasn’t until the Fourteenth Amendment, ratified in 1868, eleven years after the Scott decision, that this got cleared up.

But I wondered again this morning, as marriage equality became the law of the land, what Constitution Clarence Thomas is reading, and in what America he lives. On Friday, Thomas—a black man who grew up in the Jim Crow South, a man who should know precisely the meaning of equal protection under the law—issued one of four individual written dissents in the case, Obergefell v. Hodges. It begins in the strict constitutionalist vein that Thomas is known for, but broadens to cover not only the Constitution but also the nation as a whole. For Thomas, the decision isn’t so much about laws as it is about principle:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.

Let’s consider this passage literally, and let’s consider the kind of liberty that the “Framers” recognized. The Constitution was ratified in 1787, in a new nation in which the enslavement of kidnapped Africans and their descendants—to say nothing of the abuse, murder, and rape they suffered—was already a national institution. Their notion of liberty didn’t include folks who looked like Dred Scott, me, or Thomas himself; Thomas’s “liberty” wasn’t open to gay or lesbian Americans in that day and age, either.

In a paper written in time for the nation’s bicentennial 39 years ago, Louis Crompton noted that homosexuality was punishable by the death when this country began. Its abolition plodded through the states over the next few decades. (In 1792, Thomas Jefferson, Crompton notes, called for the castration of those found guilty of sodomy in a Virginia bill.) Penalties were reduced to imprisonment in most cases; South Carolina, perennially the last state to act in the name of its most vulnerable citizens, was slowest to change, repealing their death penalty only eight years after the Civil War. To use Thomas’s words, I’d argue, strongly, that all of this constitutes the government stripping away the dignity of those suffering legal punishments for being who they are.

Thomas, however, appears to define dignity more strictly, as the quality of being worthy of respect. That’s strange to hear coming from a man who, while the head of the Equal Employment Opportunity Commission, sexually harassed Anita Hill and likened criticism of his reprehensible behavior to a “high-tech lynching.” But I’ll allow that the idea of preserving dignity and therefore proving oneself as worthy of respect is an idea Thomas, a high-achieving student who nonetheless chose to study English literature in college to help him shed the burden of his Gullah dialect, is quite familiar with.

What I can’t stomach, however, is Thomas’s tendency to ignore the systemic effects of prejudice, and in the process serve as an agent to foster them. By not recognizing what plagues so many, he allows hatred and ignorance to swell. Thomas clearly wants marginalized people to pull themselves up by the bootstraps, all while he’s committed to taking those same bootstraps away. This is his legacy, a disgraceful sequel to the term of the man he succeeded, Thurgood Marshall. Granted, Thomas sometimes interprets symbols—such as burning crosses or Confederate flags—as offensive. But the actual, institutional bias those symbols promote escapes him. Thomas frequently infuses respectability politics into his rulings, which demonstrates his continued obliviousness to reality: It is not the responsibility of a vulnerable people to convince the powerful they are worth protecting. It is not the duty of the marginalized to prove they have dignity and therefore become worthy of being treated as equals; that task lies squarely across the shoulders of the rulers. And, in this regard, Thomas’s blindness shows. This is a person who, during the demonization of black people in the Reagan era, thought we were the main problem.

He returns to the notion of dignity later in the dissent in a passage that is even more shocking and incorrect. Citing the Declaration of Independence’s “all men are created equal”—a phrase that in an increasingly gender-aware nation, should already raise alarms about a lack of inclusion—he writes:

…human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

We live in a nation whose industries, cities, and towns grew out of fertile soil wet with the blood and sweat of slaves. The United States has long been full of unmarked geysers of prejudice, blasting their ignorance on continuously marginalized people—including the LGBTQI Americans who in many ways continue to live, despite this ruling, as second-class citizens. Marriage equality does not close the housing, employment, and healthcare disparities that exist between us cisgender straight folks and those who are not. It is only the beginning of another long march.

We live in a nation where a young white man with a racist manifesto can study the Bible with a group of African Americans and then murder them, and in the aftermath the chattering class will engage in debates about whether a racist act has occurred. We live in a place where Matthew Shepard can be slain for being gay in 1998, and Wyoming, the state where he died, can remain one of five without a hate-crime law nearly two decades later. This is a place where, since its founding, the government has had a strong say over just how much dignity a person is allowed. The right of same-sex couples to marry was one that many straight men were not bound to respect, depending upon their state. There are still many of these men, but they cannot remove the dignity the government has today bestowed.

Dignity may be innate, but that doesn’t mean it can’t be taken away from you. It can become a two-way street. You can consider yourself worthy of honor or respect, as Oxford defines it, all you wish. But if institutional discrimination deprives you of such basic human rights as health care, education, and the right to marry whomever you love, honor and respect is not afforded you. Sometimes, in the course of history, states and people need to be bound by law to respect you. Relying upon human nature, or the Founders’ supposed intentions is ridiculous when you consider yesteryear.

Thomas, having lost the argument over marriage equality, chose to offer a pernicious, unsympathetic dissent that gives short shrift to the forces of discrimination and subjugation legalized by government while further emboldening his self mythology, this legendary story he keeps feeding us. Thomas would have you believe that because he himself could survive the indignities forced upon him by Jim Crow—a system of legal discrimination that eventually came to be made illegal, after a variety of Supreme Court decisions very much like today’s ruling—and that somehow, others should be able to endure something similar without the benefit of the very legal recourse that he can deliver from his perch. Using himself as the basis for a legal argument is asinine. Doing so in the service of discrimination is inexcusable.

 

By: Jamil Smith, Sr Editor, The New Republic, June 26, 2015

June 27, 2015 Posted by | Clarence Thomas, Marriage Equality, U. S. Constitution | , , , , , , , | Leave a comment

   

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