And then there is this:
The ruling is set to take effect “immediately,” the judge ruled, meaning that same-sex couples in Montana should be free to marry now.
The Attorney General said shortly after the decision that he will appeal the decision to the 9th Circuit Court of Appeals. The Attorney General could also seek a stay from Judge Morris, but as we’ve seen time and again this month – from the 4th Circuit, from the 9th Circuit, and even from the United States Supreme Court – judges have repeatedly rejected requests for stays, because there’s no good reason to delay the freedom to marry.
Dan Savage gloats, of course, but here’s the thing:
Slog’s resident trolls would erupt every time I ended a Slog post about marriage equality with “We’re winning.” They LOL’d at my delusions, they sneered at my efforts to buck up supporters of marriage equality, they trolled a little harder. They called me a cock
eyedmouthed optimist. That was then. This is now: 35 states, motherfuckers. And, thanks to a “loss” before the U.S. Court of Appeals for the 6th Circuit—the only U.S. Court of Appeals decision that hasn’t backed marriage equality—we’re headed back to the Supreme Court.
Reading through the Sixth Circuit decision against marriage equality is a fascinating exercise in depression. We knew that a decision against same-sex marriage would require some degree of juristic contortion and acrobatics, but what the court gave us was the metaphorical equivalent of ceremonial magick.
To that end, it is a good thing there are experts who get paid for such denigrating acts of self-abuse; Dale Carpenter of The Volokh Conspiracy offers a multi-part look at the decision for The Washington Post, so far covering animus, originalism, and rational-basis review. At some point, the Sixth achieved some degree of post-Tantric orgy.
There are a couple reasons why the Sixth might have pushed as far as it did in order to reach its conclusion; neither is particularly attractive:
• Straightforward dualism: The idea of a clean sweep annoys everybody but the hometown fans, and despite the first half of the season running 0-33 for marriage equality, one might regard the post-Windsor decisions as a separate season in order to make the idea more comprehensible: Jesus can’t come home until the Devil has his day. And, no, that isn’t about the notion of an actual Biblical Apocalypse; rather, the idea of letting the Supreme Court duck out on this issue just doesn’t sit right with some, so one might suggest that we might identify within a dialectic of neurosis a sympathy toward traditionalism for no better reason than to prevent marriage equality from blanking the opposition.
• Fact and opinion: The politics of the decision match a trend in real politics. It starts simply enough: One feels insulted, and thus throws an insult in return, and that latter sees no reason to regard the detail. To wit, we call someone a liar when we catch them lying. But being called a liar tends to insult liars. So the liar returns by calling you an asshole, or a faggot, or a bitch, or something; the idea being that the only relevant detail is the sense of insult. More generally: Matters of opinion are not functional equivalents to relevant facts. In such a circumstance the decision is best explained as pure idiocy, which is hardly an unfair accusation of judges. After all, we might note that idiocy and law degrees are hardly exclusive, and remind that Rep. Michele Bachmann (R-MN06) achieved an LL.M. from William & Mary, which in turn would seem to have nothing whatsoever to do with whatever the hell it is she believes. And just like the New Orleans decision from Judge Feldman (Robicheaux v. Caldwell), it could simply be that magic word, animus guiding the Sixth Circuit decision; the object as such would be to start with a predetermined conclusion and build a decision to meet its needs.
Neither course would speak well of the Sixth Circuit majority, but both derive from observable behavioral tendencies in our society. It is nearly inevitable that this should happen, as we noted last month; though in the same breath we should probably offer Mr. Carpenter a nod, as his assessment that we quoted at the time turned out to be far more correct than ours.α
Still, it is depressing to know that the best argument judges could come up with to reject Article IV of the U.S. Constitution is to continue to treat homosexuality as if it is illegal. To the other, perhaps that is hopeful; it is, after all, the best Judge Sutton could come up with.
In the end, Judge Sutton has written the swan song for traditionalist heterosupremacism; it is a tortured, tortuous opinion, a summary testament for future generations to read through with bewildered amusement at how it could be that people once thought this way.
Dan Savage is right: We’re winning. All of us, all Americans, together.
α We leaned toward the logic of the cases themselves, which in hindsight we should have known was a bad bet against the logic of human irrationality. Dale Carpenter, for his part, simply missed on who landed where, with Sutton and Daughtery trading places.
Hiott-Millis, Lily. “The Freedom to Marry Is Coming to Montana; Federal Judge Strikes Down Ban”. Freedom to Marry. 19 November 2014.
Savage, Dan. “Marriage Equality Comes to Kansas, South Carolina, Montana”. Slog. 19 November 2014.
Sutton, J. “Opinion”. DeBoer et al. v. Snyder et al., &c. United States Court of Appeals for the Sixth Circuit. 6 November 2014.
Carpenter, Dale. “Michigan district court strikes down state’s anti-domestic-partnership law on animus grounds”. The Washington Post. 13 November 2014.
—————. “Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism)”. The Washington Post. 14 November 2014.
—————. “Inverted equal protection: same-sex marriage at the Sixth Circuit (Part II, rational-basis review)”. The Washington Post. 18 November 2014.