SteveThomas1

SteveThomas1

73p

126 comments posted · 2 followers · following 0

8 years ago @ Equality on Trial - Equality news round-up... · 0 replies · +4 points

I think that Justice Kennedy's opinion laid down more than bread crumbs. Two of the primary criteria often given for deciding whether a class is a "suspect class" are a history of discrimination and having a defining trait that is immutable. Both of these are there in the Obergefell decision. The 9th Circuit concluded that the Windsor opinion should be read as making sexual orientation as suspect classification, subject to heightened scrutiny. Judge Posner said essentially the same thing in his marriage equality opinion. I think heightened scrutiny is soon going to become the law in most of the circuits. Certainly the Obergefell opinion can support an argument to that effect.

8 years ago @ Equality on Trial - Open thread · 0 replies · +2 points

A while ago (maybe a decade ago? - can't recall and too lazy to look it up) Roy Moore was engaged in a battle with a federal court about his Ten Commandments monument, which he'd installed in the lobby of his court. (I think he was the Chief Justice of the Alabama Supreme Court then, too.) The federal court issued an injunction requiring him to remove it, and the Moore was impeached and removed from office to prevent the specter of US Marshals taking the guy to the pokey. His stance, however, was popular enough to get him elected again at the next election.

I doubt the Alabama Supreme Court really wants to get into a pissing contest with the federal court system, a contest which they would certainly lose. But it does remain to be seen precisely how this contretemps will develop and be resolved.

(The above is reconstructed entirely from memory, so it may well be wrong in significant respects.)

8 years ago @ Equality on Trial - Open thread · 2 replies · +1 points

In the run-up to the US Civil War one of the big issues was the question of "nullification" -- whether states had the right (despite the Supremacy Clause of the US Constitution) to "opt out" of compliance with federal law, either (a) in part by refusing to comply with federal mandates or (b) in whole by seceding from the Union. This was one of the issues over which the Civil War was expressly fought, with the Union maintaining that states could neither secede nor otherwise flout federal law. At enormous cost in lives, the Union won that war, and the question of nullification was supposed to have been definitively decided at that time.

From this perspective, an attempt just a couple of years before the Civil War by abolitionists to use the Southern doctrine of nullification to achieve results that would have been anathema to the South was not surprising. But it is definitely not actual legal precedent. (No more so than Bull Connor's attacks with police dogs and fire hoses are legal precedent, despite the fact that it happened.) The folks trotting it out are doing something very much like citing Plessy v. Ferguson as if it were good law.

8 years ago @ Equality on Trial - Open thread 7/3 · 5 replies · +12 points

Here's the complaint filed by Glen Maxey, the first openly gay member of the Texas legislature: http://www.txdemocrats.org/20150703101748550.pdf

8 years ago @ Equality on Trial - Equality news round-up... · 0 replies · +3 points

The preliminary injunction was issued over a year ago, and the judge had to wait for the Fifth Circuit's decision before proceeding further. The Fifth Circuit affirmed his preliminary injunction and returned the case to him, with instructions to enter a final injunction as soon as possible. Given Judge Garcia's promptness in dissolving his stay of the preliminary injunction on Friday after Obergefall was decided, I wouldn't be at all surprised if he issues the permanent injunction today.

8 years ago @ Equality on Trial - Equality news round-up... · 0 replies · +3 points

It's hard to see how Obergefell could possibly conflict with the First Amendment's Establishment or Free Exercise Clauses. This is because Obergefell is a Fourteenth Amendment case, and as such applies only to state action. The Establishment Clause (in everyone's interpretation but Justice Thomas') would prohibit pretty much any state action amounting to an estabishment of religion. (The only exception would be something like an opening prayer for a legislative session, not the ordinary workings of a government office.) And similarly, any government official acting within the scope of his or her employment would not be exercising his religion, as that would constitute an establishment of it, in so far as his actions are state actions.

That being said, the ordinary rule is that a subsequent amendment trumps an earlier-ratified portion of the Constitution. (But see Granholm v. Heald, 544 U.S. 460 (2005), where the Commerce Clause was held to trump a section of the 21st Amendment.)

8 years ago @ Equality on Trial - Defending our Marriage... · 0 replies · +3 points

I'm sure it's a typo, but you no doubt meant "Louisiana" when you typed "Alabama".

8 years ago @ Equality on Trial - Defending our Marriage... · 0 replies · +5 points

North Dakota's Attorney General says the state "won't stand in the way": http://www.grandforksherald.com/news/region/37761...

8 years ago @ Equality on Trial - BREAKING: Supreme Cour... · 0 replies · +1 points

I don't know anything about Louisiana state court procedures, and don't remember what that case's procedural status was. So I don't know. At any rate, the 5th Circuit wouldn't have jurisdiction over the Louisiana state court.

8 years ago @ Equality on Trial - BREAKING: Supreme Cour... · 2 replies · +7 points

There is no stay to be revoked in the Louisiana case. In Louisiana the federal district court judge who heard the case held against marriage equality, so there was no injunction to stay. The 5th Circuit needs to reverse the district court judge and order him to issue an injunction, and that may take some time.