Libertarians on Equal Protections
March 10th, 2015
The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.
Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.
Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.
This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.
The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.
Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”
And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:
Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).
The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.
Their blog commentary may put it in more approachable terms
Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.
Latest marriage poll
March 10th, 2015
In the latest NBC/WSJ poll, US support for marriage equality reaches new heights
Q35 Do you favor or oppose allowing gay and lesbian couples to enter into same-sex marriages? (IF “FAVOR” OR “OPPOSE,” ASK:) Would you say that you strongly (favor/oppose), or just somewhat (favor/oppose)?
38 Strongly favor
21 Somewhat favor
9 Somewhat oppose
24 Strongly oppose
2 It depends
6 Not sure
And just in case the anti-gays think this means they are winning:
More on the amicus briefs
March 7th, 2015
The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included
Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.
Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.
Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.
Alabama attorneys petition for class action on marriage case
March 6th, 2015
The attorneys who won their case against Alabama’s anti-gay marriage ban have gone back to Judge Granade and requested that the case be made a class action, impacting all same-sex couples who wish to marry.
Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.
Whatcha gotta say about that, Roy Moore?
Eighth Circuit stays Nebraska ruling
March 5th, 2015
Without explanation, the court announces in a two-page order it has stayed pending appeal a decision by U.S. District Judge Joseph Bataillon against Nebraska’s prohibition on same-sex marriage, which was set to take effect at the start of next week.
The court has included Nebraska into the joint hearing they are having for rulings lifting bans in Arkansas, South Dakota and Missouri.
Directing the clerk to expedite briefing in the case, the court announces that oral arguments for all three lawsuits will take place in Omaha on May 12.
Which is between the time that the US Supreme Court will hear arguments (April 28) and the time that the high court issues its ruling in June.
Mark your calendar, we’re going to court
March 5th, 2015
The Supreme Court of the United States has announce that it will hear arguments on the constitutionality of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee on April 28th at 10:00 am (EST).
We will want to pay close attention to the direction of the questions as that may give us a hint as to the outcome.
I’m still betting on a 6 to 3 positive ruling.
Alabama weddings screech to a halt
March 4th, 2015
The members of the Alabama Supreme Court appear to think that the state is not subject to federal rulings and apparently believes that they, not the federal judicial system, are the final word on applying the Due Process and Equal Protections provisions of the US Constitution.
Some of the anti-gay probate judges, along with anti-gay activist groups, sued in state court to have same-sex marriages stopped. The state Supreme Court responded:
As it has done for approximately two centuries, Alabama law allows for “marriage” only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.
In other words, it doesn’t matter in the slightest that the Alabama law has been found by a federal judge to be a violation of the US Constitution. Nor does it matter that the Eleventh Circuit Court of Appeals did not grant a stay, finding it unlikely that this ruling will be overturned. Nor is it relevant that the Supreme Court of the United States also refused to stay the ruling, making its intentions clear.
Nope. Neither Judge Granade nor the judges on the Eleventh Circuit Panel not the Justices of the Supreme Court know what is “in the United States Constitution”. No sirree. ‘Bama knows better.
So they’ve ordered the stop of all same-sex marriage licenses.
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples.
And not just the specific counties sued.
Further, and pursuant to relator Judge Enslen’s request that this Court, “by any and all lawful means available to it,” ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this Stateother than the named respondents and Judge Davis are joined as respondents in the place of the “Judge Does” identified in the petition.
Now there is one possible exception. Because Judge Granade specifically ordered Mobile County Probate Judge Davis to issue marriage license to four couples, the Alabama Supreme Court has not yet ordered him to stop. Rather, they demand that he come back and tell them whether he thinks that Granade’s ruling only extends to those four couples. Cuz unlike their rulings, federal rulings are limited only to the specific appellants.
So all the counties have stopped issuing marriage licenses to same-sex couples. Including Mobile County which has closed its offices.
Of course no one, inside the state or outside, thinks this has anything to do with law, justice, or constitutionality. This is merely arrogance and animus on the Alabama court’s part.
Every now and again the good ol’ boys down there seem to need to remind the world that when it comes to matters of equality and civil rights, ‘Bama ain’t having it.
Slovenian Parliament votes for marriage equality
March 3rd, 2015
dark green = marriage equality
light green = other partner recognition
From rvtlo.si (as translated by Google for those who don’t read Slovene)
Members with 51 votes in favor and 28 against endorsed the amendment of the Law on Marriage and Family Relations Act, which equates homosexual and heterosexual communities.
Amending Act, proposed by the United Left, was given the green light. Same-sex couples will be given the opportunity to marry and all rights and obligations arising therefrom, such as legal, economic and social – as it has so far had a marriage or cohabitation of two people of different sexes. Among them is the ability to adopt children.
Those who opposed the effort are promising a referendum. There does not yet appear to be clarity on the effective date of the act.
And Nebraska falls
March 2nd, 2015
US District Judge Joseph Bataillon has ruled that Nebraska’s ban on same-sex marriage violates the US Constitution.
Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens. The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court. With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children. Unfortunately, this law inhibits their commendable efforts.
For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender.
It’s interesting that Judge Bataillon noted that the majority of married couples do not presently have children in the home. I hadn’t really thought of that.
The judge has given the state a week to appeal.
IT IS ORDERED that all relevant state officials are ordered to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.
IT IS FURTHER ORDERED that this order will be effective on Monday, March 9, 2015, at 8:00 a.m. CDT
It is uncertain whether the Eighth Circuit will stay the ruling pending appeal. However, should they fail to do so, it is highly unlikely that the Supreme Court will issue a stay.
This leaves only North Dakota and Georgia without a federal ruling on the unconstitutionality of anti-gay marriage bans.
Alabama Presbyterians vote for marriage equality
February 12th, 2015
In a rather timely decision, the central Alabama presbytery of the Presbyterian Church (USA) has voted to endorse changes in the church rules that would allow them to conduct same-sex marriages. (AL.com)
The Presbytery of Sheppards and Lapsley, a central Alabama group of churches affiliated with the Presbyterian Church (USA), voted 75-39 Thursday in favor of approving gay marriages.
They became one of about 38 presbyteries nationwide that have voted in favor of gay marriage, with 14 voting against. The change to the 1.8-million-member denomination’s official stance will become official if 86 of the 171 presbyteries vote in favor.
Now the Presbyterian Church is nowhere as dominant in Alabama as the Southern Baptists. But news like this does go a long way to dilute the But God Says! and Attack on Christianity! messages upon which anti-gay Christian rely so heavily.
Ironically, some of the supportive Presbyterians looked a bit askance at the impromptu ceremonies conducted this week.
Webster said he prefers that gay marriage in the church follow a protocol of the couple being members in a church and seeking pre-marital counseling before being married in a sacred ceremony in a church.
“It seemed frivolous and impetuous,” Webster said. “We would have dealt with it more seriously, with church members in the context of a church community. For us, it’s a worship service.”
And perhaps that’s one of the ways in which we know that society is on the road to full acceptance, when levels of establishment feel that you should follow the prescribed order, just like everyone else!
Mobile County Alabama ordered to issue marriage licenses
February 12th, 2015
On Monday, Judge Carrie Grenade’s stay was lifted and marriage equality came to Alabama. But not to all of the state.
Alabama Supreme Court Chief Justice Roy Moore ordered (apparently on his own imagined authority) and order commanding probate judges to refuse service to same-sex couples. Some probate judges followed Moore’s order and flouted the law, issuing marriage licenses to opposite sex couples but not same sex couples. And some chose to not issue licenses to anyone, citing conflicting orders.
Mobile County Probate Judge Don Davis was one who froze all marriage licenses. On Monday, he was sued by same-sex couples in Mobile County who wish to marry.
A federal judge in Mobile on Thursday ordered Mobile County Probate Judge Don Davis to start granting marriage licenses to gay couples, and he immediately took steps to do just that.
Less clear is whether other probate judges, who are not defendants in either case considered Thursday, would alter their position in the face of a new ruling by Granade. Marshall, the legal director for the American Civil Liberties Union of Alabama, said he believes most probate judges will take their cues from Granade’s new order. For those who continue to resist, he said, same-sex marriage advocates will file new lawsuits naming them as defendants.
This will, undoubtedly, result in most probate judges issuing licenses. But I suspect some will be recalcitrant and fight tooth and toenail.
Alabama Supremes’ response undermines Judge Roy Moore
February 12th, 2015
In an article titled “Alabama Supreme Court punts on request for ‘clarification’ of Roy Moore’s marriage order”, AL.com reports that the Alabama Supreme Court has rejected a request.
The Alabama Supreme Court on Wednesday dismissed a request by Mobile County Probate Judge Don Davis to clarify Chief Justice Roy Moore’s order instructing probate judges to ignore a federal court ruling allowing same-sex marriage.
And, indeed, they have. The jurists other than Moore (who recused himself) refused to provide any answer as to whether Davis and the other probate judges must follow Judge Grenade’s ruling and provide marriage licenses to same-sex couples.
However, AL.com’s next paragraph seems to contradict their headline.
The justices wrote that they do not have the authority to address the question.
That is not a neutral position. That is not a view that says, “Gee, we don’t know.”
The implications are clear and Davis, along with the other county officials, should be bright enough to see them. If the Alabama State Supreme Court does not have the authority to direct probate judges not to issue marriage licenses to same-sex couples, then surely the Chief Justice, acting alone, lacks any prerogative to do so.
Alabama probate judges block 50 “traditional” marriages per day
February 11th, 2015
In 2013 (the last year available) there were 37,789 marriage licenses issued. Which averages to about 150 licenses per business day. All of them “traditional” marriages between a man and a woman.
Currently, about 35% of Alabama residents live in counties in which the probate judges have refused to issue marriage licenses to anyone, gay or straight. So some 50 or so ‘traditional’ marriage licenses are being denied per day.
For the life of me, I don’t see how this benefits anyone.
Alabama Governor not standing in the doorway
February 10th, 2015
Governor Bentley of Alabama opposes marriage equality. However, he too sees comparisons between the behavior of his state today and that of 50 years ago and he has no intention of taking up the mantle of former Alabama Governor George Wallace. (Talking Points Memo)
Gov. Robert Bentley, a Republican and a Southern Baptist, said he believes strongly that marriage is between one man and one woman, but that the issue should be “worked out through the proper legal channels” and not through defiance of the law.
The governor noted that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil rights marchers were attacked and beaten in Selma, Alabama — events chronicled in the Oscar-nominated movie “Selma.”
“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied. I’m not going to do that,” Bentley said in an exclusive interview with The Associated Press.
“I’m trying to move this state forward.”
Understanding the probate judges in Alabama – UPDATED
February 9th, 2015
Same-sex marriages are being conducted today in Alabama. But about half of the state’s counties have probate judges (an elected position which administers marriage licenses) who refuse to issue same-sex marriage licenses. They state that neither Alabama law nor any judicial ruling requires that they do so.
They are technically correct.
A very similar situation nearly occurred in Florida. There some county clerks were either uncertain as to their obligations or were playing games. And so Judge Hinkle issued a clarification in which he laid out the difference between the results of a lawsuit and the consequences of a constitutional ruling.
He noted that no clerk who has not been a party to a lawsuit is compelled to act as the result of a ruling. His order did not name them and so failing to act accordingly was not contempt of court.
However, he pointed out that something larger and greater than his ruling did compel them to act: the Constitution of the United States. And those who wanted to continue to act in defiance of the Constitution could be held liable for both the civil and financial consequences of doing so.
At that point, the Florida clerks took his direction and issued marriage licenses irrespective of gender.
Judge Grenade, in Alabama, used Judge Hinkle’s same wording in response to the same question. She noted that it was not her ruling but the Constitution that compelled equality.
But, unlike in Florida, probate judges have decided that (in the words of Washington County Probate Judge Nick Williams) they “aren’t worried about following the U.S. Constitution.”
So they are playing the “my name isn’t on that order” game. Being elected politicians in a state that does not value the Equal Protections clause of the Constitution, they are seeking to gain election value by defying the nation’s guiding document. And damn the cost (or inconvenience to them homosexuals)!
Equality advocates have been caught flat-footed. Some have tried to sue for contempt, failing to note that they have to have a ruling in their favor against that particular probate judge. Proper legal procedure is not a terribly difficult process, but it has to be followed.
My presumption is that eventually the correct paperwork will be filed. Federal judges – either Judge Grenade or others – will rule against a few specific probate judges in a few specific counties and slap their wrist with legal fees. And then all the others will fall in line.
Should any probate judge fail to do so, I suspect that they will be hit with very large penalties for defying the authority of the federal judiciary.
It may take a few days or weeks, but it’s a done deal.
Mobile County Probate Judge Don Davis has now been sued. This time the proper request appears to have been included:
Plaintiffs hereby respectfully requests [sic] that this Court enter an Emergency Injunction commanding the Defendants to issue the marriage licenses guaranteed by the Constitution as interpreted by this court.