In the months since my last post, lots of things have happened. We’ve had a national election, for one thing, which by most accounts has assured us two more years of political gridlock and confirmed the deep polarization of public opinion. At the same time, the drive for marriage equality has gone from one success to the next, with only an occasional glitch. (One – only one – circuit of the Court of Appeals has taken a stand against the trend, increasing the chances of the Supreme Court taking a case soon and deciding once and for all whether the Equal Protection clause requires equal marriage laws.)

And as usual I’ve been reading lots of stuff.

The polarization thing has drawn me back to my interest in the roots of representative democracy as we know it, in 17th and 18th century England. This is something I may be able to cook down into a series of blog posts. The latest soundbites from the conflict of Whigs and Tories. Actually, most recently I’ve been looking at the earlier history of Scotland, because it was Scots Calvinist resistance to royal imposition of Episcopacy and its trappings that triggered the English Revolution of the 1640’s. Which wouldn’t have happened if the crowns of the two countries hadn’t been united since 1603. That’s one of the things I’m getting from my study of history – a sense of how things could have turned out very differently if some heir to a throne had lived longer, or died sooner, or been born a different gender.

So let’s see if I can get myself to write up some of this stuff, and whatever else comes up.

Wish me luck!


Although it was pretty clear that the caveats in Monday’s Hobby Lobby decision – along the  lines of “we are only deciding the specific case before us, our decision says nothing about other possible cases” – wouldn’t hold much water in the long run, I was expecting the Court would manage to maintain the pretence for at least a term or two, until other cases had a chance to percolate up through the system. No way. The very next day they issued orders extending the effect of the decision to the whole range of contraceptives covered by the ACA, not just the four which Hobby Lobby claimed to “believe” were abortificants.  Then two days after that, they granted an injunction to Wheaton College effectively invalidating the “less restrictive alternative” whose presence they’d cited to justify the original decision. Even having to fill out the paperwork to trigger alternate means of coverage, it seems, can be claimed as an “excessive burden.” If the Wheaton case ends up being decided in favor of the College, doesn’t that invalidate the logic of Hobby Lobby?

The Supreme Court has done dumb things before, it has done malicious things, it has done cynical things. This is the first time I am aware of that the majority on the Court has revealed its cynicism so openly, so quickly.  The next step of course is to start ruling for “religious freedom” in cases not involving contraceptives. Like people claiming a religious objection to hiring gay people? Or members of racial minorities? Or will they draw a line and try to claim that contraceptives are different? Why? Because sex is a matter of uniquely religious concern?

And if we ever do get that stupid Religious Freedom Restoration Act repealed, will the Court turn around and say no, Hobby Lobby really follows from the First Amendment itself?

Can we trust anything they say?

Alas, the only way to deal with a bad Court is to get a better one appointed. If the Democratic Party can just hold on to the Presidency and the Senate for a decade or so…


Are we in Dred Scott territory yet?

Not quite.

Chief Justice Taney back in 1857 was determined to settle the slavery question once and for all; he could have just dismissed the case for lack of jurisdiction, the plaintiff not being a “citizen of any state,” but instead he went on to discuss the merits at great length, so there would be no doubt. The effect of course was to enrage the North and help bring on the Civil War.

The Roberts Court in contrast is issuing opinions so closely tailored, so moderate and judicious, that Justice Scalia has taken to issuing very angry concurrences arguing that the official reasoning doesn’t go far enough. Last week the Court invalidated the Massachusetts 35-foot buffer zone around abortion clinics, but left plenty of space (so to speak) for the State to adopt less drastic measures focused on actual harassment. Women’s groups are understandably outraged at losing their 35-foot safety zone, but Scalia seemed just as outraged that Roberts didn’t strike down the very idea of protecting abortion clinics. The same day, the majority ruled against the President’s power to make “recess appointments” in the three-day gaps in “pro forma” Senate sessions; but it didn’t insist (as Scalia would have) that the only valid “recess” was the adjournment at the end of the year. A ten-day gap along the way, the majority indicated, might pass muster.

OK, the Court is trying to be reasonable, nothing wrong with that. But it’s getting harder and harder to pull off. This week, on the last day of their term, they had a chance to overrule a precedent allowing certain union fees to be imposed on public service employees who are not members of the union. They avoided going that far, by pulling out of its collective hat a new category of “partial public employees” to cover the home-care workers involved in the case at hand.

And of course there’s Hobby Lobby – totally outrageous to everyone on my side of the political spectrum, and still “not as bad as it might have been” thanks to some clever legal footwork. For one thing, the Court did not decide the case under the First Amendment, but rather the Religious Freedom Restoration Act, one of those dumb things (like DOMA) that the Clinton-era Democratic Congress passed to show that they weren’t “crazy leftists” out of touch with “middle American values.” This means once we get a really progressive majority elected to Congress, the thing can just be repealed and Hobby Lobby will be out in the cold.

– As to the absurdity of a corporate “person” having religious views, the Court dealt with that by singling out “closely held corporations” which can be regarded as a kind of extension of their owners. Now this kind of “corporate personhood” isn’t quite the same as what Citizens United was about; that followed a more traditional notion of the corporation as an entity distinct from its owners. What will this new argument mean for the “corporate veil”? Who knows? Sufficient unto the day is the evil thereof.

– And the Court insists that its ruling is only about contraception, and doesn’t address other issues like whether the Jehovah’s Witnesses have the right not to pay for employees’ blood transfusions, or whether anyone has the right to discriminate against gay people. At first glance this looks like mere handwaving, but really when you look at the opinion itself it finally comes down where it does by invoking as a “less restrictive alternative” the allowance the administration has already made in the case of churches and religious non-profits, which is supposed to give employees full contraceptive benefits without the employers having to get their hands dirty. So it really is a very narrow opinion, the Court is doing its best not to be outrageous – they just can’t bring it off. They can’t see that in the eyes of a growing majority of Americans, any claimed “right” to discriminate against women is unacceptable, and any right of an employer to “conscientiously” object to paying a mandated benefit is unacceptable.

Also there are voices pointing out that all this fuss would be unnecessary if we had a single payer health care system and employers were out of the loop altogether.

So yes, we’re as polarized as in the 1850’s, and no compromise is possible any longer between the forces of progress and of reaction; the most earnest efforts by Roberts and Alito not to be Taney are doomed to failure. We won’t have another Civil War, because the sides don’t align this time into states capable of raising their own armies. But either the country will be gridlocked forever, or one side will somehow manage to win; and demographics would indicate that it will be the side of progress.



I keep wanting to use this blog to deal with weighty philosophical, religious and political matters – the arguments of Alvin Plantinga which have just gotten a spate of publicity, the research of T. M. Luhrmann, the re-eruption of Italy’s ongoing political crisis. But the accelerating drive toward Marriage Equality keeps diverting my attention; and on Valentine’s Day, of all days, one can hardly complain.

As I mentioned yesterday, the newly elected Attorney General of Virginia had declared that he wouldn’t defend the state’s same-sex marriage ban in the litigation underway there. Well, the other shoe has dropped, the case has been decided, and the Commonwealth of Virginia can now claim to live up to its motto referenced in the title of this post. (Interestingly, it appears that the motto was adopted not long after the Supreme Court overruled the state’s ban on interracial marriage in the coincidentally named Loving case. I’ve no idea whether this was done deliberately or even consciously.)

The strength of the tide in favor of Equality is evidenced in these figures: over 150 million Americans – close to a majority – now live in states where same-sex marriages are legal or recognized; and adding the states with civil unions that are as marriage-like as possible brings the total to a clear majority. (From Chris Bowers

This of course assumes that the most recent Federal court decisions survive appeal. And if they do, as they are grounded firmly on the Equal Protection clause of the Federal Constitution, it is hard to see how the result will be other than to compel recognition of same-sex marriage in all states. And in any case the pressure of evolving public opinion upon the political process seems likely to lead to a similar result somewhere down the line. A few years ago Indiana began the process of amending the state constitution to ban same-sex marriages and civil unions as well; the proposal was supposed to go to a referendum this year, but in the meanwhile it became obvious that it wouldn’t pass unless it were amended to allow civil unions; this means another legislative session will have to approve the amended version before the referendum can be held, and by then who knows?

On a more negative note, in part of Georgia Valentine’s day has been postponed due to weather. Can’t win them all.




Since my last post there have been several developments in the struggle for marriage equailty. First a federal district court in Oklahoma ruled against that state’s ban on same-sex marriage; this decision has been stayed pending appeal. Like the one in Utah, it seems to be based directly on the Equal Protection clause of the Federal Constitution, so that it cannot be upheld without affecting the whole country.

Then the new Attorney General of Virginia declared that he wouldn’t defend the state’s ban in the litigation underway there. This not only seems likely to add another state to the Equal Marriage column, it also indicates growing public acceptance of the concept, being the voice of an elected official rather than a politically unaccountable judge.

And now Kentucky. The case there didn’t directly address the state’s right to refuse to perform same-sex marriage, merely demanded recognition of such marriages legally performed elsewhere. The judge properly limited himself to this issue, but dealt with it in terms which strongly imply that if called upon, he would invalidate the ban altogether: no religious, traditional or personal moral belief can without some further showing trump the Equal Protection Clause, and no such further showing has been found to be valid. If this manages to stand, even without there being a broader ruling at a higher level, it at least invalidates that part of the federal DOMA which was left in place by SCOTUS, the part exempting the states from the usual comity requirement.

It looks more and more like endgame…


December 21, 2013

I was going to post some seasonal reflections yesterday or today, with just a passing note of congratulation to New Mexico for becoming (as I had anticipated) the 17th state with marriage equality. Then I saw the news that Utah of all places suddenly leapt into place as 18th.

Much of the coverage of this surprising development centers on the fact that Utah is the home state (and is mostly populated by members) of the Church of Jesus Christ of Latter-Day Saints, aka Mormons, whose opposition to same-sex marriage led them to spend prodigious amounts of money to support Proposition 8 in California a few years back. In addition, the state had adopted its own constitutional amendment to the same effect. (New Mexico on the other hand was the only state where the marriage law simply said nothing about gender, because until a couple of decades or so no one thought it necessary…)

But to me the striking thing is that for the first time to my knowledge a federal district court stated explicitly, and made it the basic legal grounds for a decision (the “law of the case” as they say), that equal marriage is itself absolutely required by the federal constitution. Previous court rulings had been based on equal protection clauses in the constitutions of the various states, which is why they were in some cases overturned by state constitutional amendments such as Proposition 8. The only way to reverse such an amendment, short of a ruling like the one in Utah, is for the state to enact a new counter-amendment, as I think  was done recently in one or two states. But invocation of the federal constitution trumps anything a state can do. No court had quite taken this step to date, because of the ramifications: if the federal constitution mandates marriage equality, it mandates it everywhere, in all states. End of all DOMAs at any level, once and for all. So such a decision will certainly be appealed and almost certainly be heard by the Supreme Court.

The district court that overruled Proposition 8 delicately stopped short of this, settling for a rather tenuous argument based on the fact that California had already recognized marriage equality, and the act of taking it back once it had been granted was what triggered special scrutiny. It is unclear whether this would have survived a proper appeal; what destroyed Prop 8 was the decision by Governor Brown and the Attorney General of the state not to back the appeal, leaving only a question of standing for higher courts to deal with summarily and with no precedential value.

Now, that cat is out of the bag. The State of Utah will appeal, and if it loses, that’s the end. Equal Marriage for all.

If it wins, the struggle continues…



Rights in Collision?

November 20, 2013

I have mentioned a couple of times that a marriage equality case has been percolating through the courts of New Mexico. This state is said to be the only one left to have no law of any kind either allowing same-sex marriage or prohibiting it – no legislation,no constitutional provision, no judicial decree; so a number of county clerks have taken matters into their own hands and issued licenses to same-sex couples, and have been upheld by local courts. An appeal against these decisions has been argued before the state Supreme Court, which is expected to rule on it sometime in the near future.

Meanwhile, as I learned from this article in yesterday’s New York Times, for 10 years New Mexico has had a law prohibiting discrimination on the basis of orientation, and a few months ago the above-mentioned Court upheld that law in the case of  a wedding photographer who claimed her religion would not let her accept the job of photographing a same-sex commitment ceremony (one with all the trappings of a wedding). Her argument was based not only on the state’s religious freedom act, which the Court held inapplicable because the State was not a party to the action, but on freedom of speech – photography being an art form, therefore involving an expressive element such that she felt that applying the law to her would in effect compel her to make a statement she did not agree with. Rather like the people who object to New Hampshire’s “Live Free or Die” license plates. The Court held, sensibly in my opinion, that no one would construe a commercially produced wedding album (or commitment ceremony album)  as expressing the personal opinion of the photographer. She was asked to document the event, not to approve it. Still, the question was worth raising and considering seriously; it is not impossible that someday a line may be crossed in the direction of “compulsory speech,” though I don’t think it was crossed in this case. (Another set of cases involving similar free-speech arguments is that involving the increasingly gory warning labels cigarette makers and the like are being required to put on their products…)

There’s a fine discussion of the case here. It commends the opinion of Judge Bosson, also cited in the Times article, which concurs in the result but expresses some sympathy for the appellant’s position.

The fact that this decision was unanimous bodes well, I think, for the equal marriage case in the pipeline, though the law is a subtle thing and it would be rash to venture a firm prediction…