Wednesday, June 26, 2013

Your Supreme Court at work and play -- as same-sex marriage slips through the portals of privilege


-- from's "Afternoon Update"

"Today's Supreme Court decision is a victory for all Americans, and brings our nation one step closer to the promise of equality and justice for all. The DOMA decision ensures that married gay and lesbian couples are recognized by the federal government, and that their families receive equal treatment in the eyes of the law. There should be no more discrimination based on where you're from, what you look like, or who you love. Today's DOMA decision is a historic step in the fight for equality. The federal government must ensure that no one is degraded or demeaned by the law, and that all couples receive the legal recognition and respect that they deserve."
-- Florida Rep. Alan Grayson, in a statement today
"Today's rulings are a major step forward for the country, but for Floridians they fall short of justice and are more than anything a call to action. For those of us who live in states like Florida where our marriages are still not recognized, today's decisions are a reminder that we cannot wait for justice to be handed to us, we are going to have to get engaged and fight. . . .

"While Florida couples who marry elsewhere will receive some federal benefits, unfortunately many federal protections related to marriage are based solely on whether the marriage is recognized by the state in which the couple lives. Today our rights as Americans are not based on our shared citizenship, but upon our geographic location. . . ."
-- Equality Florida Executive Director Nadine Smith, in
a statement today (Nadine issued a video "call to action")

by Ken

A historic day, yes, but when you break it down, and fit together the pieces of the other decisions the Supreme Court has announced in its end-of-term festivities, it's all recognizably our hard-right-wing Roberts Court at work, dragging the law back into the Dickensian heyday of the Industrial Revolution, if not the glory days of the Spanish Inquisition.

Earlier today Howie wrote about yesterday's ghastly Supreme Court voting-rights debacle at the Supreme Court's end-of-term festivities, and homed in on the five bozos I described on Tuesday as far-right-wing-stooge (FRWS) justices -- and specifically how they slithered their way onto the High Court, with often-inconsequential opposition. Crikey, these are life forms that have no business sitting on any bench that isn't bolted down in a park.

I would never say that I could have predicted how the major decisions would come down. The way I argue it is that once they do, we can usually see the theatrical hand orchestrating it all. So, for example, on Monday we got the seemingly moderate decision on affirmative action -- "moderate" in that contrary to the expectation of many of us, the majority didn't shitcan affirmative action altogether. Justice Scalia left no doubt that he would have been happy to do so, and my assumption is that there would have been four votes to do so. I'm guessing, though, that try as FRWS justices might, they couldn't get a fifth vote for that. What we got instead was a seeming "unity" ruling, a 7-1 remand, sending the case back to the lower court for a closer look, to make absolutely sure that there wasn't any unallowable racial-preference funny business going on. Naturally, those judges have been put on alert to look really, really hard -- would anyone care to bet what they're going to find?

The message was pretty clear to the state of Texas, which immediately announced that for the next election it's putting into effect the election revamp it passed in 2011 designed to screw voters the right-wing establishment doesn't like out of their right to vote. Let's assume that the Supremes' FRWS Five aren't total morons (I'm not entirely sure in a couple of cases, but let's give them all the benefit of the doubt), and know that for all the right-wing screeching about "voter fraud," there has been no indication of any such thing happening, whereas dating back at least to the stolen presidential election of 2000, Republicans have been devoting more and more resources and time to election-stealing, and seizing control of the voter rolls has been a principal tool. Most of its strategies to date have been anywhere from probably to flagrantly illegal, but look here now, we control the law!

Which is where Justice Scalia's ruling in Arizona v. Inter Tribal Council of Arizona takes a turn for the comical. The issue, you'll recall was the illegality, according to the 7-1 majority, of Arizona adding a requirement while using a federal form. Uh-uh, said our Nino, you can't do that. And "if a reader of the Scalia opinion stopped at the top of page 13," wrote ScotusBlog's Lyle Denniston, "the impression would be very clear that Congress had won hands down in the field of regulating federal elections."
But from that point on, there is abundant encouragement for what is essentially a states' rights argument: that is, that the states have very wide authority to define who gets to vote, in both state and federal elections.

On the particular point at issue in this case -- Arizona's requirement of proof of citizenship before one may register to vote or actually vote -- the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement. And, Scalia said, if that doesn't work — either because the federal agency that would deal with such a request is either not functioning or says no -- then a state would be free to go to court and make an argument that it has a constitutional right to insist on proof of citizenship as an absolute qualification for voting, in all elections.

The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing, because that part of the Scalia opinion laid a very heavy stress on the power of states under the Constitution to decide who gets to vote.
And again, since Justice Nino isn't a moron, he surely knows full well that the agency to which Arizona would make this request is completely crippled by virtue of having no members, thanks to the Republican philosophy of non-governing: blind obstruction. So Arizona would get no answer to such a request, would go back to court, and . . . well, you get the idea. Ha ha ha!

What's more, in the process we get to see Justice Nino being, it appears, unpredictable. Mmm, no, that's just an illusion. But I think a not entirely accidental one. The FRWS Five seem to have become a lot more sensitive to the optics of their shredding of the Constitution and constitutional precedent, which for a number of frightening years has been unapologetic. Note, for example, that in the voting-rights decision, Chief Justice Roberts essentially blamed Congress for screwing up, failing to come up with constitutionally acceptable criteria for subjecting states and localities to Justice Dept. scrutiny of their voting procedures. Of course in the decades that the Voting Rights Act has been in force, and in all the times it has been reauthorized by Congress, nobody ever told them that the existing criteria were unconstitutional. (To which I assume the Chief would answer, "Well, nobody asked me!") And once again, the Chief, not being a moron, knows full well that at present there isn't the slightest possibility that Congress could rise to the occasion, because the House is effectively controlled by the kind of people who love the idea of being able to exclude people they don't like from the voting rolls.

Once again, the message to the states is: Discriminate, baby, we've got your back!

Note too how the voting-rights case, Shelby County v. Holder, was neatly sandwiched between the "moderate" non-eradication of affirmative action and today's decisions in the two same-sex-marriage cases. I am prepared to give the Court credit for coming right out and declaring Section 3 of DOMA unconstituional. That's the one that has prevented any federal agency from extending any marital benefits to same-sex couples, and it was nice to have a relatively unequivocal declaration that this is an unconstitutional form of discrimination.

That was all that was needed to decide the case, and traditionally the Supreme Court doesn't rule any more broadly than is needed to decide a case. Of course this is a tradition that the Roberts Court has regularly trashed, since going beyond what's needed to decide a case has been one of its favorite hobbies. In fact, the opportunity to do so has frequently seemed part of its reason for taking certain cases. In this case, though, it means that while the federal government is going to have a hard time going foward treating parties to a same-sex marriage differently from parties to an opposite-sex one, it doesn't mean that same-sex couples have been found to have any inherent right to the institution of marriage. If they're legally married, the ruling says, they have to be treated the same as any other couple that's legally married. In addition, neither the case nor the ruling required the justices to deal with the right of states to refuse to recognize other states' same-sex marriages -- that's protected in Section 2 of DOMA, which hasn't yet been touched.

But even in the matter of the DOMA rejection, as those NYT article blurbs up top suggest, the Court has more than anything followed the trend taking hold in the country. Remember that when same-sex marriage was finally authorized in New York State, a lot of important support, financial and otherwise came from Republican businesspersons. The business community has indeed been grasping that homophobia is increasingly "bad for business." It makes it harder to recruit qualified LGBT candidates, and it makes it hard to sell to LGBT consumers and straight consumers who understand the issue at stake. Go back to Rep. Alan Grayson's statement at the top of the post: "Today's Supreme Court decision is a victory for all Americans." There's someone who gets it, and getting this has been spreading to more and more of the country's mainstream.

So again, give the Supremes credit, but not that much. And in the Prop 8 decision, while the result will be to reinstate the District Court ruling that Prop 8 is just plain unconstitutional (and not merely at odds with the California state constitution, as the Ninth Circuit Court of Appeals had argued, since it took away a right -- one that had been established by the courts -- for no reason except to discriminate against LGBT folk), and same-sex marriage is clearly going to be legal in California again, but the ruling is unlikely to have any impact outside California. It's conceivable that the District Court ruling could be cited in other jurisdictions, but federal District Court rulings have no automatic application anywhere else.

And so the Roberts Court may have bent a little in its mission to uphold the rights of the privileged and white, but it didn't really bend all that much. It certainly didn't break.

I don't suppose this is terribly diplomatic, but then, it's aimed at people who have never had any impulse toward diplomacy in dealing with us. Like Michele "Mighty Mouth" Bachmann, who sent out a tweet saying, "No man, not even a Supreme Court, can undo what a holy God has instituted."


JUNE 26, 2013



WASHINGTON (The Borowitz Report) -- In a shocking end to an illustrious legal career, police arrested Justice Antonin Scalia today as he attempted to set the Supreme Court building ablaze.

Justice Scalia, who had seemed calm and composed during the announcement of two major rulings this morning, was spotted by police minutes later outside the building, carrying a book of matches and a gallon of kerosene.

After police nabbed Justice Scalia and placed him in handcuffs, the [Justice] appeared "at peace and resigned to his fate," a police spokesman said.

"He went quietly," the spokesman said. "He just muttered something like, 'I don't want to live in a world like this.' "

Back at the Supreme Court, Justice Scalia's colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.


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