The Ted Cruz Show (Preposterous Pretense)

I assume Cruz knows this, but the more he talks about ‘mandatory gay marriage,’ the more I’m inclined to remind him that he probably means ‘voluntary gay marriage.’

―Steve Benen

This is what we call E for Effort, but don’t let that be a dig; it really is difficult to make heads or tails of what conservatives mean. This is sort of a confusing issue for them, and it seems that is how they like it.

There was, for instance, the amicus brief from Same-Sex Attracted Men and Their Wives, submitted for consideration in Obergefell, that fretted about a “constitutional mandate requiring same-sex marriage”, and the idea of “Constitutionally mandating same-sex marriage”. By the time we get to Pat Robertson’s bestial-anal rape fantasy―“You are going to say you like anal sex, you like oral sex, you like bestiality, you like anything you can think of, whatever it is”―it is unclear what, if anything, remains to be said.

Well, other than the obvious, which is to wonder what the hell these people are talking about.

But Mr. Benen does, between failed valiant attempts to take Sen. Ted Cruz (R-TX) seriously, manage to make the obvious point:

The only “mandatory” aspect of this is that the notion that the law would be required to treat all Americans equally. It would be “mandatory” that there are no second-class citizens.

This is what we must remember, though: The confusion is the point.

It is just harder to sell the fear of “mandatory gay marriage” if people take the mandate for what it really is: You got married, so now you’re married.

It is not that this is somehow hard for conservatives to understand; rather, they need it to seem hard to understand. The only confusion is that which they pretend, or, as some circumstances might have it―Same-Sex Attracted Men and Their Wives amici, I’m looking in your direction―actually genuinely suffer for whatever deceptions they have inflicted upon themselves.

This sort of seemingly incomprehensible incomprehension is actually pretty straightforward, depending on how deeply one wishes to delve. It is ego defense, nothing more, nothing less. They don’t like what is mandatory, but it is kind of inherently mandatory. So they need the idea of what is mandatory to be kind of scary. So they pretend to be kind of confused about what is mandatory, and then they manage to confuse themselves. This is actually something people do to themselves quite regularly, regardless of political orientation.

In the question of the Republican Party and its desperate, evangelical wing, there does remain a question as to whether or not such failures of healthy psychological function should present themselves as so consuming. That is to say, sure, it’s one thing to have one’s dysfunctional moments, but shouldn’t your part in the public discourse have something more to it than just a neurotic tumbleweed?

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Image note: Top―Sen. Ted Cruz during the Reuters Washington Summit, 24 October 2013 (Photo: Jim Bourg/Reuters) Left―”You don’t want the ark to sink.” Lebanon gives some advice to Suou. Detail of frame from Darker Than Black: Gemini of the Meteor, episode 4, “The Ark Adrift on the Lake”.

Benen, Steve. “Cruz warns of ‘mandatory’ same-sex marriage”. msnbc. 18 May 2015.

A Throwback to the Future

Patience is one of the most challenging virtues. As marriage equality finds its home in state after state after various federal courts strike down exclusion laws passed amid political panic in the wake of Lawrence v. Texas, what seems a straightforward issue has observers on the edges of their seats.

Meanwhile, how about a throwback, just for nostalgia’s sake? You know, all of ten days.

That is to say, in the wake of the Supreme Court’s refusal to hear heterosupremacist appeals earlier this month, Steve Delchin, writing for the Sixth Circuit Appellate Blog maintained by the D.C. law firm Squire Patton Boggs, looked ahead to what is supposed to be a bated-breath decision coming from the Sixth Circuit sometime before winter arrives:

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved. But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional. Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments). All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path. We will continue to keep close watch.

Alaska, Losing

Perhaps the biggest mystery of the recent judicial avalanche in favor of marriage equality is the absence of Article IV in what are clearly Article IV cases. Consider Hamby v. Parnell, a case striking Alaska’s marriage ban.

Perhaps it is the lack of an Article IV claim, as opposed to Judge Heyburn’s decision in Kentucky that intentionally bypassed the Full Faith and Credit Clause of Article IV. Still, though, Judge Timothy M. Burgess, appointed to the District of Alaska by President George W. Bush, finds his way through to strike the ban according to Due Process and Equal Protection under Amendment XIV. Still, though, in a case in which four couples are demanding their marriages from other states be recognized in Alaska, it would seem Full Faith and Credit should be a glaring issue.

To take an example, my father has been married twice, once each to different women. In his first marriage, the couple lived in three different states and a foreign country over the years. They never had to remarry in any of those jurisdictions; the Washington state marriage was sufficient, an act and record of one state recognized in another. In his second marriage, the couple has lived in two states and spent an extended period in Mexico. They did not have to remarry in any other jurisdiction; their Oregon marriage sufficed for other states and, indeed, other countries. This, ultimately, is what is at stake. Perhaps Article IV won’t come into it until a state refuses another state’s marital record in order to force the couple to repeat the ceremony and pay out for licensing in the new state.

The bottom line, however, is that another state’s marriage ban has collapsed under constitutional weight. This much, at least, is hardly mysterious.

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Burgess, Timothy S. “Order”. Hamby v. Parnell. United States District Court for the District of Alaska. 12 October 2014.

Where the Tide Takes Us

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

―Supreme Court of the United States

This is not an unexpected outcome. Indeed, the blunt, unsigned order refusing Idaho’s request to stay the Ninth Circuit decision striking the state’s same-sex marriage ban is pretty much exactly expected. The only strange thing about it, really, is that the order exists at all.

The point arose last week when the Court refused to hear arguments from several states after Appeals courts struck their marriage bans. As Rachel Maddow explained to viewers:

So, there are nine Supreme Court justices. Do the math. If you want to win a case at the Supreme Court, you need five votes. You need five justices on your side. You need five votes to win a case.

But it only takes four votes for the Supreme Court to decide to take a case in the first place. So, we know there are four anti-gay marriage justices on the Supreme Court—Scalia, Roberts, Alito and Thomas. If they had wanted to hear one of these cases today, if they had wanted the chance to overturn one of those pro-gay marriage cases from the lower courts, those four justices had enough votes to take the case to do it.

I mean, the anti-gay marriage side could have taken one of those cases if they want to. So, why didn’t they?

Latta is an Article IV case. The thing is that no excuse a judge might invent to try to get around Amendment XIV, the Equal Protection Clause, marriage equality runs up against the Full Faith and Credit Clause of Article IV of the Constitution.

Given that the Supreme Court just said no to appeals in Article IV cases, one might wonder why Justice Kennedy thought to issue a stay and ask his colleagues to undertake another Article IV case.

Lyle Denniston brings us the answer:

Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower-court ruling that had nullified the ban on same-sex marriage there. The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order. Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it. Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

Certainly, it was a weak reason, but, you know, it is no big deal, right? Just making people wait for their civil rights in order to be nice to Idaho while they attempt to make an impossible argument.

Nonetheless, Idaho is go. And, you know, it was only a day. What’s another day after all these years?

Oh. Right. Obergefell. Which reminds, there is no news from the Sixth.

But there is news from North Carolina, where a District Court in Charlotte struck the Tar Heel State’s marriage ban according to Bostic v. Schaefer, a Fourth Circuit case the Supreme Court refused.

Additionally, Denniston explains the Ninth Circuit Memorandum issued Saturday, bringing a formal end to the moot Jackson v. Abercrombie in Hawai’i. It’s a happy ending.

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Supreme Court of the United States. “Order in Pending Case”. Otter v. Latta. 10 October 2014.

Maddow, Rachel. “‘Edie and Thea’ lead way to marriage equality, argle-bargle notwithstanding”. The Rachel Maddow Show. msnbc. 6 October 2014.

Denniston, Lyle. “No delay on Idaho same-sex marriages”. SCOTUSblog. 10 October 2014.

Cogburn, Max O. “Memorandum of Decision and Order”. General Synod of the United Church of Christ v. Resinger. United States District Court Western District of North Carolina Charlotte Division. 10 October 2014.

United States District Court for the District of Hawaii. “Memorandum”. Jackson v. Abercrombie and Bradley v. Abercrombie. 10 October 2014.

Palmetto Cruelty, or, Traditional Virtues in South Carolina

So, this happened today:

The South Carolina Supreme Court is ordering state probate courts not to issue same-sex marriage licenses until a federal judge decides whether the state constitution’s ban on the unions is legal.

(Jeffrey Collins)

This is actually quite an interesting development. After all, as we learned yesterday:

A South Carolina court has accepted a same-sex couple’s application for a marriage license despite the state’s constitutional ban against the practice and the attorney general’s pledge to defend it.

(Associated Press)

The brief summary: The Supreme Court rejects appeals against marriage equality, with several states having lost their fedral court bids to uphold marriage bans. South Carolina accordingly begins issuing marriage licenses. South Carolina filed a motion in the state Supreme Court five minutes before the close of business, asking the Court to quash the licenses before the twenty-four hour waiting period required of all marriage licenses expired. The state Supreme Court accepted the motion and quashed licenses already issued.

It is true that the decision by the Charleston County Probate Court to begin issuing marriage licenses included the hinge of state Supreme Court approval, but here’s the thing about the court’s rationale: The state Supreme Court wants to wait for a federal ruling in another case, one that was put on hold by the SCOTUS decision to refuse the appeals. That case is an Article IV claim; the marriage ban will be struck.

In the end, this is just a deliberate delaying tactic in South Carolina, a wailing, gnashing effort to fend off the inevitable for the sake of simple human cruelty.

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Collins, Jeffrey. “South Carolina Supreme Court Halts Same-Sex Marriage Licenses”. The Huffington Post. 9 October 2014.

Associated Press. “South Carolina Supreme Court Halts Same-Sex Marriage Licenses”. The Huffington Post. 8 October 2014.

Smith, Bruce. “SC high court asked to halt gay marriage licenses”. The State. 8 October 2014.

Something About Today: Quiet Hash

Sometimes the answers really are blowing in the wind, even if the answer is nothing more than the sounds of silence. Of course, in modern America genuine silence is hard to come by. Kate Nocera explains for Buzzfeed:

On Monday afternoon, Sen. Mike Lee was one of the few GOP members to issue a statement. His home state of Utah was one of the states where a marriage ban was overturned by an appeals court and the state is now moving forward with allowing same-sex couples to marry. Lee called the Supreme Court decision to not review the appeals “disappointing.”

Texas Sen. Ted Cruz likewise criticized the decision on the part of the court and announced that he would introduce a constitutional amendment that would allow the states to define marriage.

“I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws,” Cruz said.

Supreme Court decisions are often met with swift reaction from members on Capitol Hill, filling reporter’s inboxes with statements of disappointment or support for whatever the justices have ruled. All the more when the decision impacts a hot-button social issue.

The muted response from congressional Republicans is telling. As public opinion on legalizing marriage for same-sex couples has dramatically shifted in its favor, the GOP’s opposition has quieted. Republicans have often argued that the decision on marriage should be left up to the states.

And let us bear in mind that Sen. Lee (R-UT) is from one of the rejected states; it’s hard for the Utah delegation to say absolutely nothing. And the Republican junior from Texas? Sen. Cruz, the strict constitutional constructionalist, is welcome to try. You know, since strict construction fails to satisfy his desires.

How It Goes: Recognition Edition

Last month, Emma Margolin undertook an effort to list the reasons why the Supreme Court was expected to take up marriage equality in the new term that began today. And, of course, something about today, because the msnbc reporter brings the news that we should add five states to the officially official marriage equality roster:

Marriage equality is coming to five more states – with six more on the way.

The Supreme Court on Monday rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin – all of which saw their bans fall in both federal district and appeals courts. The move immediately legalizes marriage equality in those five states, and will soon topple bans in six other states that make up the 4th, 7th, and 10th circuits. Those states include Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, bringing the total number of states where gay and lesbian couples can wed from 19 plus the District of Columbia to 30 – more than half the nation.

With a ruling expected sometime this fall, all eyes turn to the Sixth Circuit, where it is hard to imagine the court rejecting Full Faith and Credit.

SCOTUSblog checked in with the summary reflecting the sentiments coloring the headlines:

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership.

And so it goes. For now.

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Margolin, Emma. “Five signs the Supreme Court will take up gay marriage”. msnbc. 29 September 2014.

—————. “Marriage equality comes to five more states”. msnbc. 6 October 2014.

SCOTUSblog. “Practically, today SCOTUS recognized a right to SSM”. Twitter. 6 October 2014.

The Picture: Marriage Equality Mix

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

―David A. Strauss

There is a lot going on. Or maybe not. Where once the idea was that courts should stay out of things and let “democracy” pick and choose who gets what human and constitutional rights in the United States, many of those advocates are looking to the Supreme Court of the United States to cram the gays back into the closet. With Justice Ginsburg suggesting last month that the Supreme Court might get involved if the lower courts make a sufficient mess of things, and the Fifteenth Judicial District Court of Louisiana holding the line in terms of state courts, one might wonder about the fervor Robert Barnes noted last week for the Washington Post:

The 10th edition of the Supreme Court under Chief Justice John G. Roberts Jr. begins work Monday with the prospect of a monumental ruling for gay rights that could serve as a surprising legacy of an otherwise increasingly conservative court.

Whether the justices will decide that the Constitution protects the right of same-sex couples to marry dominates expectations of the coming term; such a ruling would impart landmark status on a docket that so far lacks a blockbuster case.

And some say it would be a defining moment for a closely divided court that bears the chief justice’s name but is most heavily influenced by the justice in the middle: Anthony M. Kennedy, who has written the court’s most important decisions affording protection to gay Americans.

“If the court establishes a right to same-sex marriage . . . [it] will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” said David A. Strauss, a constitutional-law scholar at the University of Chicago.

“The rough idea would be that the Roberts court would be to the rights of gays and lesbians what the Warren court was on race issues.”

Something about blockbusters, to be certain; one would hope we have enough worked out about our society that we should not necessarily be rushing for a marquée show every year. That is to say, there is plenty wrong with society, but do we really have so many fundamental civil rights questions coming to the fore? And if so, well, what the hell is wrong with Americans that we have not yet figured out how some of these very basic concepts work?

One of the Most Fascinating Political Questions of the Year

“Despite my deep respect and admiration for Ginsburg and her inspiring career, I find her approach extraordinarily reckless. For all of our sakes, here’s hoping her gamble pays off.”

―Steve Benen

And as much as we all at This Is adore Mr. Benen’s insightful analyses, we do indeed disagree on occasion. And in the matter of whether or not Justice Ginsburg should retire, a simple question asserts itself: Do we trust Justice Ginsburg?

Benen’s overview is sufficient, let there be no doubt. And, to be certain, it is fair to point out that Ginsburg’s political calculations are not without risk. Furthermore, of course we all, as such, hope the gamble pays off. But in a time so uncertain as to cloud the prognostications of conventional wisdom, it also pays well to remember that not all things are equal. On paper, sure, the analysis suggesting Ginsburg is taking too big a risk by her political calculation is at least arguable. But what of the human terms? The variables resolve with diverse values, and in that, quite frankly, it is not a matter of who does one trust, Mr. Benen or Justice Ginsburg. The question to consider is whether or not one trusts Justice Ginsburg.

If her calculation is so dangerously awry, she ought not be on the Court in the first place. Those of us who not only appreciate her presence on the Court but also recognize the magnitude of what kindness history will speak of her tenure have every reason to trust Ruth Bader Ginsburg.

In a way, it does help to point out: Remember, she’s the one throwing down. And before anyone stutters about Scalia or Alito or whoever, that is beside the point. Ginsburg recently let the lower courts know what was on the minds of the Supremes and while Justice Scalia was in Texas explaining why the perspectives of self-centered supremacist bigots from the eighteenth century should describe the twenty-first, Ginsburg explained to law students in Minnesota that the nation’s ranking court would not get involved in the growing noise and bluster over same-sex marriage unless lower courts botch it all up.