2,239 comments posted · 6 followers · following 0

1 day ago @ Equality on Trial - Open thread 1/16 BREAK... · 1 reply · +5 points

I agree with guitaristbl that we tend to underestimate Roberts's conservativism in general and his anti-gay animus in particular. Roberts has NEVER ruled in favor of gay rights.

(Apparently, however, he counted the votes on the Court in favor of same-sex marriage and refused to follow Thomas and Scalia in imposing stays on the Appellate and then district decisions in favor of ssm so that by the time Obergefell was decided a majority of the states had achieved marriage equality. I think he did so in the interest of preparing the country for a ruling that he had determined to be well-nigh inevitable.)

I would not be at all surprised were he to join four other justices to overturn Obergefell despite the disruption and heartache that would cause. He is no friend of gay people and, as he said in his dissent to Obergefell, does not believe that the Constitution requires same-sex marriage. He does, however, seem to be an "institutionalist" and would be concerned about stare decisis and the impact on the reputation of the Court that a reversal of Obergefell would entail, especially now that over 60% of the country is in favor of marriage equality.

I hope that the Democrats take control of the Senate in 2018 and block any appointment that Trump may make to SCOTUS, so that we do not have to rely on the tender mercies of Roberts to save Obergefell.

1 day ago @ Equality on Trial - Open thread 1/16 BREAK... · 1 reply · +1 points

Is the LDS Church powerful in Costa Rica? Lee is practically a spokesman for the LDS Church. Conversely, he may simply may be posturing for his Mormon constituents in Utah.

1 week ago @ Equality on Trial - Open thread and quick ... · 1 reply · +8 points

Following the unanimous ruling by a Seventh Circuit Court of Appeals panel in favor of Ash Whitaker, a transgender student who was horribly mistreated by a Wisconsin School District, the district has agreed to pay Whitaker, now a student at the University of Wisconsin, Madison, $800,000 and to drop its appeal to the Supreme Court.

Congratulations to a brave young man!

Read more here: http://www.towleroad.com/2018/01/transgender-stud...

1 week ago @ Equality on Trial - Open thread and quick ... · 0 replies · +9 points

If confirmed by the legislature, Associate Justice Andrew McDonald will become Chief Justice of the Connecticut Supreme Court. He will be the first openly gay man to serve as Chief Justice of a state Supreme Court.

"McDonald, who must be confirmed by the legislature, thanked his family, teachers, colleagues and husband Charles Gray during Monday's announcement with [Governor Dannel P.] Malloy.

"When I was born here in Connecticut a little more than 50 years ago, loving relationships like the one Charles and I cherish were criminal in 49 states including Connecticut," he said.

"When I came out in the early 1990s, I had family members who loved me deeply but still counseled me against pursuing either a career in law or in public service because of the deeply ingrained prejudices held by some people at that time," he said. "But now, because of changes brought about by evolving understanding of people, new statutes passed by legislators and important court cases — indeed by the rule of law — this day was made possible."

Malloy called McDonald a long-time friend who "has proven himself to be a consummate, revered jurist who has an exceptional ability to understand, analyze, research, and evaluate legal issues."


1 week ago @ Equality on Trial - Open thread and news r... · 3 replies · +4 points

SCOTUS has declined to hear Lambda Legal's appeal of Mississippi's "license to discriminate" bill. It is possible that they accepted the Fifth Circuit's decision that the appeal was not ripe since the plaintiffs allegedly lacked standing. Or it may be that the Masterpiece Bakery case is duplicative of the issues involved. In any case, it is disappointing.

2 weeks ago @ Equality on Trial - Breaking news 12/22 · 0 replies · +3 points

This is a stupid and meansprited comment. The bankruptcy of your absurd idea is revealed by your resort to a personal attack. I have drunk no right-wing Kool-Aid. There is nothing reactionary about my view of the judiciary. My view is, however, based on historical analysis, not on fantasy.

A SCOTUS that was unwilling to repeal sodomy laws until 2003, that alllowed DADT to stand until 2010, that obviated DOMA only in 2013 (on a 5-4 vote), and that ruled in favor of same-sex marriage only in 2015 (again on a 5-4 vote) would not have ruled in favor of same-sex marriage in 1972.

For all your lauding of the Warren court as bold and progressive, it notably did not advance gay rights except inadvertently in 1958, when it ruled in favor of ONE, INC. when the U.S. Post Office refused to distribute the magazine because even the discussion of homosexuality was deemed pornographic (a case that had more to do with censorship than with gay rights.) The ONE case was important because without it, we would not have been able to build the mass movement that was necessary for us to win equal rights, a process that required great sacrifice and hard work.

The more conservative Burger court was unlikely to go where the Warren court refused to go and embrace same-sex marriage. Any appellate attorney of stature would have advised against appealing Baker to SCOTUS. Not only was there no likelihood of SCOTUS issuing a favorable ruling, there was a very good chance that they would issue a very detrimental ruling. Luckily, they thought the very idea of same-sex marriage was so outlandish at the time that they merely rejected it out of hand, deeming it unworthy even of comment..

You are free to fantasize about what might have happened if SCOTUS in 1972 did what we would have liked it to do. But it is only fantasy, and it has the effect of ignoring reality, including the reality of our heroic struggle for equal rights, which was hard-won and did not depend on fantasy figures, but on educating and persuading our fellow citizens.

(Moreover, the idea that SCOTUS follows public opinion to a certain extent is held by such "right wing" jurists as Ruth Bader Ginsberg.)

2 weeks ago @ Equality on Trial - Breaking news 12/22 · 5 replies · +4 points

The country would not have accepted same-sex marriage in 1972. Had the Supreme Court so ruled, a constitutional amendment would have sped through Congress and the states banning same-sex marriage. The amendment would have passed Congress overwhelmingly and have quickly been ratified by every state in the union. At that time, no more than 10% of the country would have opposed such an amendment.

You greatly underestimate the opposition to gay rights in general in 1972 if you believe that opponents would have allowed equality to become "the new reality, whether everyone liked it or not."

The analogy with abortion is not apposite. The country has been split on the issue of abortion for many years, with a bare majority in support of the right to abortion, but with a majority in favor of some limitations to that right. So there was never a chance of passing an amendment banning abortion, but the issue has never been settled because right-wing states continue to push for limitations of various sorts.

What is surprising is how the country has evolved since 2003 on the question of gay rights and on same-sex marriage. But it has been less than a decade that a majority of Americans have been in favor of same-sex marriage, and some states even now have not evolved.

As it turned out, Windsor and Obergefell came at just the right time--when the country had reached a bare consensus in favor of same-sex marriage.

Change in this country, on such emotionally-charged issues, cannot be imposed from the top down. The judicial success we have achieved is the result not just of good lawyering but of creating a mass movement for equal rights that ultimately persuaded a majority of our fellow citizens that discrimination is wrong.

2 weeks ago @ Equality on Trial - Breaking news 12/22 · 8 replies · +8 points

My last comment on this thread. Ian's "what if" fantasy has the effect of minimizing the epic struggle we have engaged in to gain equal rights in this country. It has taken a long time; we have lost many battles; and we by dint of our persistence have gained many successes. But it was not easy and the kind of "quick fix" Ian fantasizes is not only unrealistic but it would not have succeeded.

In the 1970s, we were fighting to be left alone. We were trying to keep the police out of the bars and the cruising areas. We were trying mostly to remain anonymous. We wanted the state out of our bedrooms. We scored a few successes during the decade, including a couple of sodomy laws declared unconstitutional, a few anti-discrimination ordinances, but nothing beyond that. The notion that even California would adopt a statewide anti-discrimination law would have seemed highly unlikely (and indeed did not happen), much less adopt a domestic partner or civil union law.

We managed to beat back some of the most egregious attacks on us, including a couple led by Anita Bryant, in the 1970s. Harvey Milk and David Mixner helped defeat a particularly nasty California referendum that would have banned gays from teaching in public schools, but our success depended a lot on Ronald Reagan believing that it went too far. (And he was no fan of gay people.)

It was only in the 80s that recognition of our relationships became a major issue, and only then because AIDS was exposing our vulnerability.

Ian seems to think that the country would have embraced same-sex marriage in the 1970s if only SCOTUS had ruled the right way on Baker. That is patent nonsense. Our impotence and unpopularity is clear from the DADT fiasco in the 1990s, when a president who was elected in part because of our votes and money, was prevented from integrating the military. His attempt resulted in the DADT "compromise," which turned out to be a disaster. Very few senators and representatives even from blue states voted against DADT and, as we know, we could repeal it only in a lame-duck session in 2010, even with a supportive president and an overwhelming Democratic majority in Congress. (One that would soon be replaced by a Republican majority in the House that would not have voted for repeal.)

The vote in favor of the Defense of Marriage was also overwhelming. The Republican strategy of using same-sex marriage as a wedge issue in 2000, 2004, and 2008 was very successful for them. (Even in the Obama landslide in California in 2008, Proposition 8 was passed.)

We did not win at the ballot box until 2012. A majority of Americans did not support same-sex marriage until (depending on polls) 2010 or 2011.

We have been engaged in an epic struggle to convince Americans that gay people deserve equal rights. That struggle should not be minimized by suggesting that if only SCOTUS had made a ruling in 1972 then it would not have been necessary.

2 weeks ago @ Equality on Trial - Breaking news 12/22 · 0 replies · +3 points

It is pure fantasy that a ruling for Baker in 1972 would have opened the "floodgates." In 1972, except for some pockets of activists in San Francisco, Los Angeles, New York, and a few other cities, gay people lived in terror of being exposed. The gay rights movement was still in its infancy. There would have been a dramatic backlash from the religious communities, who then were also beginning to be active, and just about everyone else.

2 weeks ago @ Equality on Trial - Breaking news 12/22 · 3 replies · +4 points

You are fighting a straw man. I have no disrespect for Baker and certainly not for Baehr, which actually resulted in an important court victory, though it was circumvented by our opponents quickly negating the ruling with a state constitutional amendment. Actually, Baehr teaches an important lesson. When our court victories are negated by voters, as in Hawaii and Alaska, that means that the people were not ready for the ruling. In the highly unlikely event that SCOTUS would have ruled in favor of same-sex marriage in 1972, conservatives would have succeeded in ratifying a federal constitutional amendment prohibiting same-sex marriage, and even liberal states like California and New York would have passed it overwhelmingly.

As I mentioned before, I admire how determinedly Baker and McConnell fought for our rights. But that does not mean that their legal strategy was sound. We are, as I said before, lucky that their efforts were not taken seriously because the case could have led to a very rigid and binding opinion (or even worse, if the Court had ruled for them, a constitutional amendment that we could not reverse even today).

In 1996, 24 years after Baker, SCOTUS was not willing even to overturn sodomy laws for God sake. After the horrendous Hardwick ruling, it took 17 more years to get it reversed. (And note that though Lawrence was 6-3 to strike down the Texas law, it was only 5-4 to reverse Hardwick, since O'Connor was not willing to find a constitutional right to homosexual relations.)

You seem to think that if people make persuasive arguments, then inevitably the Court will do the right thing. That is a very naive view. The arguments made in Baker were reasonable, but the members of the Court were unwilling to go where they should have. The Court has always been as much of a political institution as it has been a disinterested interpreter of the Constitution. We will be lucky if Trump doesn't place more Federalist Society members on Scotus. If he does, you can count on Obergefell and Windsor being reversed.