Friday, June 26, 2015

Amazing but true: The Supreme Court looks into the Constitution and finds that there are some rights there for people who aren't rich


He-e-ere's Booby! "Why don't we save some money and get rid of the Supreme Court?"

"Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion."
-- Ian Millhiser, writing on ThinkProgress

"This Court is not a legislature."
-- Chief Justice Roberts, in his dissenting opinion

"If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual orientation and gender identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise."
-- from a statement by former Adm. (and Rep.) Joe Sestak

by Ken

As he does so often, Joe Sestak nails it. According all citizens their basic rights isn't about doing "them" some sort of favor. It's about being part of a society that's serious about "our shared common enterprise."

We'll come back to Joe's statement. It is, it seems to me, is where we want and need to wind up. Meanwhile we have some filling in to do, and that includes dealing with outright buffoonery like the above sentence from Chief Justice "Smirkin' John" Roberts's dissenting opinion today in Obergefell v. Hodges. Can't you just see the smirk on Smirkin' John's puss as he delivers that hilarious one-liner? "This is court is not a legislature," quips the man who has spent nearly all his time on the Supreme Court using it precisely as a legislature -- often declining to recognize Congress as a legislature. (Of course Congress itself has done its best to abandon that role, but the acts of Congress the chief justice has used as toilet paper date from times when it was at least semi-functional.)

As Howie noted in an "update" this morning, the decision in Obergefell v. Hodges was finally released today, and with "Slow Anthony" Kennedy joining the Supreme Court's four sane justices (for once, instead of simply lumping them thusly, let's recognize them by name: Ginsburg, Breyer, Sotomayor, and Kagan), it turns out that gays and lesbians have a constitutional right to get married just as if they (we) were regular people.

"How unbelievably quickly public opinion changed"'s Chris Cillizza today presented five charts to track the "unbelievably quick" change, staring with this "baseline" chart based on Gallup polling. (Click to enlarge.)

For the record, I have no plans to walk down the aisle anytime soon (hey, the occasional date would be nice), but believe you me, I feel the importance of the High Court's open recognition of our humanness -- or at least five-ninths of the Court. (A shout-out to the Slowman! I know I'm hard on him, for reasons I think are painfully obvious, but I've never said he doesn't from time to time rise to the occasion.) And once again I register the seismic change in public opinion that has taken place in such a relatively short time after all those years (or decades, if not centuries) of incomprehension, loathing, and brutal repression.

The dissenters: Justices Clarence, Smirkin' John, Sammy, and Nino

We now have, by the way, a provisional answer to the question: "How many ways are there to try to deny basic human rights to people of non-mainstream sexual orientation?" Going by the need felt by each of the naysaying justices felt to register a separate "no way, Jose" dissenting opinion, the answer would be: "at least four." (To be more precise, Justices Scalia and Thomas joined Chief Justice Roberts's dissent but also wrote dissents of their own. Justice Alito played "cheese stands alone.")

For the strong of stomach, ThinkProgress's Zack Ford and Judd Legum have gathered "19 Hysterical Passages From Supreme Court Same-Sex Marriage Dissenters."


Until the decisions in the Supreme Court's two current marquis cases came down yesterday and today, I hadn't realized how unoptimistic I was about both. As I hypothesized last night, writing about the 6-3 ruling in King v. Burwell, my surprise at the thumbs-up given to ACA-created subsidies for healh insurance purchased on the federal exchange had something to do with always expecting the worst from this Court. In the case of today's decision there was an additional factor: the justices' own clear disinclination to handle the matter until it was forced to, when finally a split developed at the circuit-court level.

It seemed pretty clear that the justices for whatever reason(s) didn't want to be pinned down to having to say, yea or nay, whether there is a constitutional right to marry regardless of sexual orientation. I figured the justices would try to find some way of narrowing he scope of their ruling, and my go-to legal eagle, ThinkProgress's Ian Millhiser, argues that Justice Kennedy did pull a punch:
Obergefell v. Hodges is not the most perfect victory the Supreme Court could have handed gay, lesbian and bisexual Americans. That would have been a decision applying some form of “heightened scrutiny,” a legal declaration that all laws that discriminate on the basis of sexual orientation must be treated with skepticism by the courts.
And yet the decision is still a "massive victory," says Ian. "And it likely clears the path for a follow up decision establishing that the rights of gay men, lesbians and bisexuals extend far beyond the marital context."

How so? Ian is intrigued by two words used conspicuously in Justice Kennedy's majority opinion: immutable and fundamental.

"Immutable" is used twice, "once in an off-hand statement that sexual orientation is an "immutable nature," and again in a more pointed statement that "psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable."
Kennedy’s declaration that sexual orientation is immutable has obvious political significance. It puts to bed, at least for legal purposes, what remains of the debate over whether people can choose not to be gay. But this word also carries particular significance in a case such as this one, where a discrete group of Americans allege that they are victims of discrimination. Though the Court’s cases have, at times, been murky on this point, they often refer to immutably as one of several factors that, when combined, can trigger heightened scrutiny. Kennedy’s decision to use this loaded word is a sign that he — and a majority of the Supreme Court — is willing to hold that all anti-gay discrimination by government should be treated skeptically.

Obergefell drops other hints that such a holding is coming. The primary factor in determining whether discrimination against a particular group should be subject to heightened scrutiny is whether that group has historically faced discrimination that bears “no relation to ability to perform or contribute to society.” Kennedy leaves little doubt that gay people meet this standard. “For much of the 20th century,” he writes, homosexuality was treated as an illness.” Meanwhile, “same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.” Sex between two men or two women “remained a crime in many States,” and “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”
As for "fundamental," Ian observes, "Obergefell holds that marriage is a fundamental right, and that this right extends to same sex couples.
This holding is significant for two reasons. For one, it normalizes the Supreme Court’s gay rights jurisprudence. The Court’s past major gay rights decisions, all of which were written by Kennedy, often read as if they were assembled from rejected lyrics from the Age of Aquarius. They spoke loftily of principles such as “dignity,” but left the reader wondering exactly what sort of legal analysis the Court was engaged in. By rooting the Court’s decision in a fundamental rights analysis, by contrast, Kennedy uses a long-recognized, if controversial, method of deciding constitutional cases. When a right is recognized as fundamental, any law that abridges it must be treated as preemptively unconstitutional.

As Kennedy explains, “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” This process “has not been reduced to any formula.” Instead, “it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.”

Much of Kennedy’s explanation of why the right to marry meets this standard drips with the same kind of purple pose that Kennedy used in his past opinions. “From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage,” begins one section of the Court’s opinion. “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm,” Kennedy continues. “Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.”

Yet beneath all of this florid language, it is also clear that Kennedy understands, at a very basic and personal level, the humanity that he shares with men and women who happen to be gay. The most moving portion of the Obergefell opinion isn’t Kennedy’s soaring arias about the nature of marriage, it is his simple recitation of the facts of this case.
I'll leave you to Ian's unfolding of the facts of the cases amalgamated in the Obergefell ruling and jump to his conclusion:
Justice Anthony Kennedy is a conservative Republican. The irony of Obergefell v. Hodges is that it is also a socially conservative opinion. The men and women behind this lawsuit, Kennedy writes, seek admission into one of the most profound and most conservative institutions in our society. According to Kennedy’s opinion, “marriage is a keystone of our social order.” It is “the foundation of the family and of society, without which there would be neither civilization nor progress.” It gives “character to our whole civil polity.” And it “remains a building block of our national community.”

And when Kennedy looks at men and women such as DeKoe, Kostura, Obergefell, Arthur, DeBoer and Rowse, and he does not see people trying to disrupt the social order. He sees people who served their country, who take in children that others cast aside. He sees the life he has enjoyed with his own wife, and he understands how soul-crushing it would be if the state treated his wife as if she were a stranger to him.


While the haters have been out in force today, there has also been a splendid outpouring of enthusiasm and good will all across the social spectrum -- a tribute to the amazingly rapid change in the American state of mind. Howie has passed along smart, heartfelt statements by an assortment of folks like Blue America-endorsed Senate candidates Donna Edwards in Maryland and P.G. Sittenfeld in Ohio, and Reps.Mark Pocan (Wisconsin), Ted Lieu (California), and Jared Polis (Colorado).

But the statement that really got to me comes from former Adm. (and U.S. Rep.) Joe Sestak, who for me always combines a big-picture-type guy's vision with a nuts-and-bolts real-world problem-solver's perspective. In both his noble 2010 Pennsylvania U.S. Senate campaign and his current one, his voluminous stream of incisively substantive campaign e-mails have reflected the voice of a big-picture-type guy with the perspective of a hands-on "let's get it done" guy accustomed to, you know, getting it done. (No wonder, as Howie has been reporting, he inspires such loathing from the DSCC and the rest of Democratic officialdom.)

"Today's ruling," Joe's statement begins, "affirms what I learned in my 31 years in the U.S. Navy, where I went to war alongside men and women who were gay."
I could never fathom a justification for any of these warriors going home to the one he or she loves and not having the same equal right to marry that person.

I will always remember the day I was least proud of the Navy I love so dearly – a day in 1993 when an official Navy spokesman, commenting on what would become Don't Ask Don't Tell (DADT), told the New York Times that 'homosexuals are notoriously promiscuous' and if allowed to declare their sexual orientation openly, heterosexuals showering with gay men would have an 'uncomfortable feeling of someone watching.'

I was ashamed. When DADT was passed, a two-star Admiral asked me, “What do you think about this policy?” I said, "It's unconstitutional and I have no doubt that the Supreme Court will throw it out in a couple months." Unfortunately, that didn't happen.

So when I got to Congress, I was proud to co-sponsor legislation to end DADT and prohibit the military from discriminating based on sexual orientation. In my view, we need the best of our communities in the military, regardless of sexual orientation, so that each of us together can truly "be all you can be."

The same can be said of our entire society, and it's why today's ruling is such an important step. I am running for the United States Senate to continue taking the further steps on the path to true equality – in veterans' benefits, public accommodations, adoption refusal laws and so many other fundamental areas.

If we're serious about restoring the American Dream, we need 'all hands on deck.' We must ensure that all Americans – regardless of sexual-orientation and gender-identity – are guaranteed the opportunity to achieve a better future for themselves and their families, and contribute fully to our shared common enterprise.


I've arranged in alphabetical order a compendium of statements by GOP contenders this morning sent out by DNC National Press Secretary Holly Shulman (who herself says: "Today is a monumental step toward equality. Same-sex marriage will now be legal all across the nation. Love is love, and it’s now the law"):
BUSH: "I believe in traditional marriage."
FIORINA: "I do not agree that the Court can or should redefine marriage."
HUCKABEE: "The only outcome worse than this flawed, failed decision would be for the President and Congress…to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny."
JINDAL: "Marriage between a man and a woman was established by God, and no earthly court can alter that."
PERRY: "I'm a firm believer in traditional marriage… I fundamentally disagree with the court rewriting the law and assaulting the 10th Amendment."
RUBIO: "I believe that marriage…should be between one man and one woman."
WALKER: "The only alternative left is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage."


This morning Howie quoted Angie Craig, one of two Democrats seeking the Democratic-Farm-Labor nomination to challenge reactionary Minnesota GOP Rep. John Kline, making a crucial point:
While today is a day for celebration, we can’t forget there is still more to do to stop discrimination against the entire LGBT community in areas such as employment and housing, just to name a couple... There are still millions in the LGBT community across the country who can still be fired just because of who they are – and there is no excuse for that.
Exactly right, Angie. The case for making a federal case of same-sex marriage has been controversial, to say the least, in the LGBT community, because clearly it isn't as important in human terms as nondiscrimination in employment and housing. And yet it has turned out, much to the surprise of many of us, to be a winnable fight, and very likely a win that can be built on for those other rights.

I'm encouraged by Ian Millhiser's case that Justice Kennedy's opinion contains the seeds for future support from the Supreme Court recognizing LGBT people as people.

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At 8:47 PM, Anonymous Sue said...

Thanks for the shoutout to Joe.
He needs all the help he can get from us as the official party hates him for his forthrightness.a little like they hate Bernie Sanders...

At 10:45 PM, Blogger KenInNY said...

I think it's very much the same thing, Sue, the only difference being that Joe has been attempting to work within the Democratic Party while Bernie has always operated outside it. Different as the places are that they're coming from, they're both serious about making government work for its citizens, while the party drones are serious about making government work for them. Bernie and Joe are also very similar -- although, again, arriving from very different directions -- in not suffering fools gladly, or even especially politely, and our political apparatus is stuffed with fools.

I wish I knew what to do to help Joe get his messages heard.


At 8:54 PM, Blogger Minnesota Central said...

TV's talking heads made an interesting assessment ... what have the gays/lesbians been fighting for ... to serve in the military and to get married.
Aren't those things that Congress should be encouraging ... not discouraging ?

Yet, look at John Kline ... and how he voted after Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, advocated for repealing Don't Ask Don't Tell (read
John Kline Rejects That The Times They Are A Changin’

Yes, the Supreme Court ruled when Congress refused to act ... and the reason they refused to act is because Minnesota's Second District elected John Kline ... and today, he has failed to hold a hearing on H.R. 846 : Student Non-Discrimination Act of 2015 and its 140 bipartisan co-sponsors and ignored ENDA legislation.

Let us remember that the Supreme Court received a "friend of the court" brief signed by a number of prominent Republican politicians, including current and former governors, Senators and Representatives who advocated for legalization of same-sex marriage nationwide.
It's not strictly a Republican issue ... its an Obstructionist issue.
Now that the Supreme Court has ruled, the question will be on Republican leadership ... will they continue to support John Kline or realize that he is hurting the party.

Regardless, come November 2016, the voters will be given another chance to Move Forward with Craig or continue to allow John Kline to lead the Obstructionist Party.


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