Samuel Alito

Justice

People celebrate inside the Stonewall Inn, an iconic gay bar recently granted historic landmark status, after the U.S. Supreme Court ruled same-sex couples have the right to marry in all 50 states. (Yana Paskova/Getty Images)

Today.

This is our honor.

• There is, of course, the decision itself: Obergefell v. Hodges (14-556)

• Or perhaps a headline: “Gay Marriage Supporters Win Supreme Court Victory”

• The author: “Kennedy: The Gay Marriage Justice”

• Another headline, this one somewhat overstated: “Texas Pastor Says He Will Set Himself On Fire In Protest Over Gay Marriage”

• Dissents or temper tantrums? “‘Ask the nearest hippie’: The conservative SCOTUS justices’ opinions on marriage equality are hilariously bitter”

• And why not ask a hippie? “We Asked the Nearest Hippie About Scalia: It Was David Crosby”

• Unfit for duty: “To avoid marrying gay couples, some Alabama counties have stopped marrying everyone”

• GOP presidential timber, part one: “Constitutional Remedies to a Lawless Supreme Court”

• Fifty-four years, cookie dough, and Stonewall celebrations: “From Ice Cream To Ian McKellen: Reactions To Same-Sex Marriage Ruling”

• GOP presidential timber, part two: “Jindal: ‘Let’s just get rid of the court'”

• GOP presidential timber, part three: “Scott Walker calls for Constitutional amendment to let states define marriage”

• What a real President of the United States sounds like: “Remarks by the President on the Supreme Court Decision on Marriage Equality”

I would at this time raise a glass to homophobic traditionalists from Sea to Shining Sea; without your dedicated, horrifying zeal, we might never have come this far. Indeed, your own cruelty and hatred shepherded this day.

Drink up, dreamers of hatred and supremacism; you’re running dry.

Then again, we also know you’re nowhere near finished, at least in your own minds. We’re here. We will hold the line. We know you’re targeting children, now, and we will hold the line.

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Image note: People celebrate inside the Stonewall Inn, an iconic gay bar recently granted historic landmark status, after the U.S. Supreme Court ruled same-sex couples have the right to marry in all 50 states. (Yana Paskova/Getty Images)

Required Reading: Equal Protection Edition

Contemplation of Justice

This is pretty much required reading. William N. Eskridge Jr., of Yale Law School, offers an opinion in favor of Amendment XIV recognition of same-sex marriage in Ohio. The middle of the article stands out:

Justice Anthony Kennedy said: “This definition has been with us for millennia. It’s very difficult for the court to say, oh well, we know better.” Justice Samuel Alito asked: “How do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

All of the justices and counsel addressing this point accepted the premise that no culture had ever recognized same-sex marriage. That premise is incorrect.

First- and second-century historians Suetonius and Tacitus (disapprovingly) documented official same-sex marriages in imperial Rome. Some modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece. So it is not right to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

The evidence is overwhelming for non-Western cultures. In their 1951 book “Patterns of Sexual Behavior,” anthropologists Clellan Ford and Frank Beach surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.” They were mainly referring to “berdache” marriages, in which a man would marry another man who performed domestic duties or a woman would marry a woman who worked outside the home. Researchers have demonstrated that a majority of Native American tribes (as well as many tribal people elsewhere in the world) have recognized such marriages at points in their histories.

Anthropologists have also documented the phenomena of “woman marriage” in African societies, in which a wealthy woman marries another woman and then secures her impregnation, thereby generating heirs. Anthropologist Denise O’Brien reports that such marriages have been recognized in more than 30 African cultures.

There are other examples (some more equivocal), but these show that there has been no universal definition of marriage that excludes same-sex couples.

To the one, it should be noted that Prof. Eskridge also authored an amicus brief in support of the Obergefell petitioners on the question of the Fourteenth. And while the interest of amici might be a bit thin, the brief still makes for excellent reading.

To the other, we should remember what is at stake: Ohio is trying to unmarry a dead man.

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Eskridge Jr., William N. “The 14th Amendment should cover same-sex marriage in Ohio”. The Washington Post. 19 June 2015.

Eskridge Jr., William N. and Ilya Shapiro. “Brief of Amici Curiae CATO Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners”. Supreme Court of the United States. 6 March 2015.

Morbid Hilarity (King v. Burwell Throwback Mix)

That King v. Burwell has even made it to the Supreme Court becomes even more of a mystery; the cynicism of the case is plainly apparent; even Justice Scalia is reduced to cheap politicking.

Perhaps, then, we ought not be surprised at Ian Millhiser’s report for ThinkProgress, which runs under the lovely title, “The Lawyer Telling The Supreme Court To Gut Obamacare Explained Why He Should Lose In 2012”, should surprise nobody:

On Wednesday, a lawsuit seeking to defund much of the Affordable Care Act appeared to hit a roadblock when Justice Anthony Kennedy expressed concerns that the plaintiffs’ reading of the law is unconstitutional. Though Michael Carvin, the lead lawyer challenging the law, attempted to extract himself from this roadblock, he quickly ran into an entirely different obstacle — his own past writings.

Attorney Michael Carvin, who argued King v. Burwell before the Supreme Court of the United States, 3 March 2015, on behalf of plaintiffs hoping to overturn the Affordable Care Act, in an undated photo.  (Image credit: AP/Pablo Martinez Monsivais)Carvin claims, in a case called King v. Burwell, that Obamacare should be read to deny tax credits that enable millions of Americans to afford health insurance in states that elected not to set up their own health exchange (under the Affordable Care Act, states have “flexibility” to decide whether to set up their own exchange or to allow the federal government to do so). During oral arguments on Wednesday, however, several justices raised concerns about the catastrophic damage Carvin’s reading of the law could inflict on those states’ insurance markets ....

.... Carvin tried to downplay the risk that consumers would simply stop buying plans in the law’s health exchanges if the tax credits were cut off, claiming that these consumers would still be attracted to exchange plans by the fact that the exchanges offer “one-stop shopping” for people looking to buy insurance. He also claimed that Congress wasn’t worried about the risk of death spirals if the tax credits get cut off. According to Carvin, “there’s not a scintilla of legislative history suggesting that without subsidies, there will be a death spiral.”

But Carvin himself sang a very different tune three years ago. Indeed, Wednesday was not the first time he’s stood in the well of the Supreme Courtroom and asked the justices to gut the Affordable Care Act. Carvin was also one of the lead attorneys in NFIB v. Sebelius, the first Supreme Court case attacking the law.

In a brief filed in NFIB, Carvin explained that “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” And, contrary to his more recent suggestion that Congress never envisioned any danger if the tax credits are cut off, Carvin wrote in 2012 that “the insurance exchanges cannot operate as intended by Congress absent those provisions.”

In a subsequent brief, Carvin elaborated that “the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges.” He also seemed to contradict his central claim that different states are treated differently depending on whether their exchange is operated by a state or the federal government. The Affordable Care Act, according to the Michael Carvin of 2012, “enables uniform and acceptable federal premium subsidies”.

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The One About How Nine Justices Walk Into a Bar ….

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. (Photo: Stephen A. Masker)

“Congratulations, Congress, you’ve literally sunk to the level of a punch line.”

Steve Benen

The proposition that Congress is a punch line strikes few as new material. Even the idea that a Solicitor General would take the shot is not so strange. Yet Steve Benen makes the point about Justice Scalia’s blithe view of the 114th Congress:

Scalia wasn’t kidding. “I don’t care what Congress you’re talking about,” he added. “If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot – yes, I think this Congress would act.”

On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn’t even exist because Congress would have clarified the ACA structure years ago.

And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they’re receiving now.

But that’s all the more reason to understand exactly why Scalia is wrong.

Perhaps it is Justice Scalia who is the punch line. Then again, neither is that news.

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The American Dream

Matt Bors on the American Dream (12 July 2014)Matt Bors reflects on the American Dream, and what it has come to signify in the twenty-first century. I can’t wait until a board of directors becomes a prerequisite for basic family planning. Incorporate! Now, damn you! Via Daily Kos.

A Quote: Justice in America

“Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.”

Dahlia Lithwick and Sonja West