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.

Follow-up … Clean-up … Something-up

Rachel Maddow’s nearly giddy segment on msnbc last night noted that when the full effect of yesterday’s Supreme Court rejection of appeals against marriage equality reaches the states, the roster will equal thirty states. And she looked forward to decisions expected from the Sixth and Ninth.

Today, the hammer dropped in the Ninth; Dale Carpenter quips:

I haven’t read the Ninth Circuit opinion yet. I have to teach now, so it would be nice if the courts would stop issuing gay-marriage decisions for an hour or so.

The estimable Lyle Denniston of SCOTUSblog explains what happened in the Ninth:

The Ninth Circuit’s ruling was made up of three parts.

First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples. Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s Due Process Clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berzon, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender.

The third member, Circuit Judge Ronald M. Gould, joined only the main opinion on the equal protection principle.

This ruling was perhaps the least surprising among four federal courts of appeals decisions striking down state prohibitions on same-sex couples marrying, and already-married couples gaining official state recognition of those unions, performed elsewhere.

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.

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.