Bourke v. Beshear

¡Godzilla! Oh, Wait … It’s Just Marriage Equality

Justice is blind ... just kidding.  No, really, did you read the Sixth Circuit ruling?  Jaded eyes, jaded eyes ....

And then there is this:

Today, November 19, U.S. District Court Judge Brian Morris ruled in favor of the freedom to marry in Montana, striking down the ban on marriage between same-sex couples in the state.Marriage Moves Forward in Montana!

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.

(Hiott-Millis)

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 cockeyedmouthed 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.

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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.

Squire Patton BoggsMeanwhile, 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.

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Something About Today: Quiet Hash

USConstitution-ArticleIV-header

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.

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The Picture: Marriage Equality Mix

Contemplation of Justice

“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?

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