Jeffrey Sutton

The Countdown: Weekend Edition

Contemplation of Justice

There are a few things here:

The Defense of Marriage Act decision overshadowed another 2013 case―Hollingsworth v. Perry―that could have determined whether states could ban same-sex marriage.

The case concerned a challenge to California’s Proposition 8, a state constitutional amendment that barred same-sex couples from marriage. But Roberts, writing for the majority, dismissed the case, holding that the challengers did not have the legal standing to bring it to the court.

The ruling left in place a lower court decision that had invalidated Proposition 8 and thus paved the way for same-sex marriage in California. Roberts’ lesbian cousin, who lives in California, sat in the courtroom during arguments in the Prop 8 case.

Few people predicted that the issue would return so quickly to the Supreme Court, but waves of lower court judges―sometimes citing Windsor―struck down the state bans.

Ariane de Vogue is not wrong. It seemed strange at the time; the Hollingsworth outcome was one of my anti-prophet moments. When the case was selected, I actually told a friend it wouldn’t make sense for the Court to take the case and then punt. And, yet, here we are.

(more…)

What It Sounds Like When Bigots Cry

Lebanon dispenses wisdom and confidence.  (Darker Than Black: Gemini of the Meteor, episode 4, 'The Ark Adrift on the Lake ...')

Matt Baume makes the obvious point―

Four states will have to defend their marriage bans before the U.S. Supreme Court this month, and all four are still scrambling to figure out exactly how they’re going to pull that off. They filed a series of briefs with the court last week that are full of weird claims and arguments that just don’t make sense. Kentucky says that its marriage ban doesn’t discriminate, since gay couples are still free to marry someone of the opposite sex. This is exactly the same argument that was used to justify bans on interracial marriage, and it’s essentially saying: “You’re free to do whatever you want, as long as you actually do something else.”

Michigan’s brief is even crazier. They say that gaining marriage equality through a court order, rather than a popular vote, would be demeaning to gay couples. So, thanks, Michigan, for your concern. Tennessee is sticking with the argument that if gay couples can get married, then straight couples will stop raising children in stable families, somehow. And Ohio says that overturning the marriage ban would cause the people who voted for it to feel isolated. Sure.

―but given that he chose Gov. Steve Beshear for the article photo, it’s probably worth reiterating that the Kentucky Democrat isn’t exactly dedicated to the argument.

And, in truth, the title of Baume’s article―“The Four Worst Anti-Gay Marriage Arguments Ever”―really is a matter of opinion. That is to say, I’m not going to knock his summary, but I’m not sure what comes out of Michigan, Ohio, or Tennessee overcomes the absurdity standard set by Paul D. Clement in Hollingsworth, when he argued, on behalf of House Republicans that heterosexual irresponsibility was a reason to ban gay marriage.

Sigh. Yes, he really said that.

And, you know, sure, what Leigh Gross Latherow came up with for Kentucky―after the Attorney General refused to argue the case―is just one of those supremely stupid arguments. We might suggest nostalgia, one last go for the homophobic trolls.

Nor did Baume exactly miss it. Rather, his focus is on the cases coming before the Supreme Court―which reminds of the problem with the word “ever”―and we already know the arguments against marriage equality are so weak that even Justice Thomas has acknowledged the inevitable outcome. What we hear from Tennessee and Michigan is straightforward stupidity. Ohio isn’t even trying. And Kentucky? Well, Ms. Latherow as achieved a new standard in stupidity.

We might have hoped that the Sutton and Cook opinion in the Sixth Circuit would be the “swan song for traditionalist heterosupremacism”, but apparently that wasn’t good enough for Ms. Latherow, who certainly wouldn’t intentionally throw the case. And the vicious excuse for an argument popular among internet trolls six or seven years ago is apparently what she found at the bottom of the barrel.

Scrape away, Ms. Latherow; you’ve certainly achieved your place in history.

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Image note: Lebanon dispenses some manner of wisdom and confidence. (Darker Than Black: Gemini of the Meteor, episode 4, ‘The Ark Adrift on the Lake …’)

Baume, Matt. “The Four Worst Anti-Gay Marriage Arguments Ever”. The Huffington Post. 7 April 2015.

Savage, David G. “Gay marriage opponents take unusual tack with Supreme Court”. Los Angeles Times. 26 January 2013.

The Countdown: Three Weeks

Jim Obergefell, left, and John Arthur, who suffered from ALS, are married by officiant Paulette Roberts, Arthur’s aunt, on a plane on the tarmac at Baltimore-Washington International Marshall Airport on July 11, 2013. (Glenn Hartong/AP)

Three weeks.

It was not a long marriage, just three months and 11 days — the time it took his husband, John Arthur, to struggle to say, “I thee wed,” and then die from ALS. Now their union, and the 20-year relationship that preceded it, is at the center of Obergefell v. Hodges, the title case of four consolidated appeals the Supreme Court will hear this month to decide whether gay couples have a constitutional right to marry.

(Rosenwald)

Perhaps it would be helpful to understand not only the importance of Mr. Obergefell’s marriage, but also the terrible depths to which two judges in the Sixth Circuit stooped in hopes of calling it off.

The right of Ohio to decide which marriages to honor or not depends in part on whether the marriage is illegal for other reasons. And that’s part of what is going before the Supreme Court in three weeks. You know, because marrying your gay partner is the equivalent of other prohibited behaviors like incest, or incompetence. (See Sutton and Cook, pp. 40, 59.)

That is how low Judges Jeffrey Sutton and Deborah Cook reached in order to unmarry a dead man.

Yes, there is a reason even Justice Thomas knows it’s over. And in three weeks, Mary Bonauto will do us the honor of driving the nails.

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Rosenwald, Michael S. “How Jim Obergefell became the face of the Supreme Court gay marriage case”. The Washington Post. 6 April 2015.

Sutton, Jeffrey and Deborah Cook. “Opinion”. DeBoer v. Snyder. U.S. Court of Appeals for the Sixth Circuit. 6 November 2014.

Thomas, J. Clarence. “On Application for Stay”. Strange v. Searcy. Supreme Court of the United States. 9 February 2015.