Judge Moore and Justice Thomas and marriage equality in Alabama

I guess that Alabama Supreme Court Chief Justice Roy Moore is taking his cues from Supreme Court Justice Clarence Thomas’ dissent instead of from the actual ruling in which the majority of the United States Supreme Court refused to stay a District Court ruling that allowed the state to become the 37th state to allow same – sex marriages.  According to the Washington Post story, Justice Thomas wanted a stay.

The court is months away from hearing arguments in a landmark case about whether states are free to ban such unions. But Thomas said a majority of the justices may have already made up their minds, as reflected by the court’s “indecorous” decision Monday morning allowing same-sex marriages to proceed in Alabama.

“This acquiescence may well be seen as a signal of the Court’s intended resolution of that question,” Thomas wrote in a dissent from the court’s order refusing to stay the weddings. “This is not the proper way to discharge our . . . responsibilities.”

Thomas and his pal, Justice Scalia voted for a stay.  And I think he is probably right.  The more states that allow marriage equality and the more couples that marry, the harder it will be to overturn any lower court rulings.  It may turnout that the Supreme Court will “compromise” by letting the few states in which the Appeals Court has overturned lower court rulings that not allowing marriage equality violates either the state or U.S. Constitution, but I think they are headed for a Loving v. Virginia kind of decision.

However, Judge Moore appears to have decided that he’d rather go with Thomas than the actual ruling.  Judge Moore ordered Alabama probate judges not to issue marriage licenses to same-sex couples.  According to the Washington Post

Much of the legal uncertainty in Alabama over same-sex marriage centers on Roy Moore, chief justice of the state’s Supreme Court. On Sunday night,Moore told Alabama’s probate judges not to issue marriage licenses, defying a federal judge. This is not the first time Moore has refused to follow a federal judge’s ruling.

We all remember when Judge Moore refuse to remove that large stone Ten Commandments monument from the courthouse.  The Post explains

Until this week, Moore’s claim to fame was being the “Ten Commandments judge.” The controversy that led to Moore being ousted from the bench involved a large monument to the Ten Commandments that had been installed in the Alabama Judicial Building in Montgomery.

This two-and-a-half-ton monument, and Moore’s fight to keep it in place, served as a cultural flash point. Civil liberties groups argued that it violated the church-state separation, while conservative and religious supporters of Moore defended his actions.

The Southern Poverty Law Center, the American Civil Liberties Union and Americans United for the Separation of Church and State filed a lawsuitarguing that the monument violated the constitutional prohibition against religious endorsement. The U.S. Court of Appeals for the 11th Circuit agreed, ordering Moore to remove the monument.

He was then removed from his judgeship by the state ethics panel, but was reelected in 2012.

2300alabama-ssm-0209

So as a result of Judge Moore deciding the Thomas dissent was better than the refusal to grant a stay, Alabama is in chaos.  There are now counties where no marriage licenses are being issued at all, some that are just refusing same-sex couples, and others who are complying with the district court.

There will be more lawsuits as people are denied the right to marry.  I wonder what Justice Thomas will do when the next appeal from Alabama reaches the Supreme Court, but I think the Alabama ethics panel will be having another hearing with Judge Moore.

The Supremes, Judge Posner, and gay marriage

The news late last week that the Supreme Court would hear an appeal from the Sixth Circuit ruling upholding bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee brought to mind the Seventh Circuit ruling last fall written by Judge Posner.  Mark Joseph Stern writing in Slate noted that suddenly there was a “race” among judges to …”write the one marriage equality opinion that history will remember.”  But Stern wrote

Thursday’s ruling by 7th Circuit Judge Richard Posner, which struck down Indiana’s and Wisconsin’s gay marriage bans, is a different beast altogether. In his opinion, Posner does not sound like a man aiming to have his words etched in the history books or praised by future generations. Rather, he sounds like a man who has listened to all the arguments against gay marriage, analyzed them cautiously and thoroughly, and found himself absolutely disgusted by their sophistry and rank bigotry. The opinion is a masterpiece of wit and logic that doesn’t call attention to—indeed, doesn’t seem to care about—its own brilliance. Posner is not writing for Justice Anthony Kennedy, or for judges of the future, or even for gay people of the present. He is writing, very clearly, for himself.

Ironically, by writing an opinion so fixated on the facts at hand, Posner may have actually written the one gay marriage ruling that the Supreme Court takes to heart.Other, more legacy-minded judges have attempted to sketch out a revised framework for constitutional marriage equality, granting gay people heightened judicial scrutiny and declaring marriage a fundamental right. But Posner isn’t interested in making new law: The statutes before him are so irrational, so senseless and unreasonable, that they’re noxious to the U.S. Constitution under almost anyinterpretation of the equal protection clause.

I spent time this morning reading Judge Poster’s opinion.  It is readable and understandable even by non-lawyers.  He takes each argument made by Indiana and then Wisconsin against same-sex marriage one at a time and uses precedent, social science, and history to demolish them.  Posner sets out to answer four questions.

Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society.

Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole?

Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well?

Throughout his decision, Judge Posner concentrates on children and marriage.  The same persons who argue against same-sex marriage are often the same persons who argue that the state needs to encourage heterosexual marriage to provide stability to children.

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

In Indiana a same-sex couple can adopt while in Wisconsin, one member of a same-sex couple can adopt.  So the logical conclusion is that marriage is just as important for same-sex couples with children as for heterosexual couples with families.  And he points out that those who say that same-sex marriage will some how erode or damage heterosexual marriage need only to look at the 10 year history in Massachusetts to see that there is no impact at all.

Judge Posner’s decision is full of “zingers” most aimed with impatience at irrational argument.  But he also takes aim at Justice Scalia citing his dissent in Lawrence v. Texas which struck down laws against sodomy.

…But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

In the end, Judge Posner can find no rational argument against same-sex marriage.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

Pete Prete with Equality Beyond Gender waved a Marriage Pride flag attached to an American flag outside the Supreme Court in Washington on Friday.

The Supreme Court will hear arguments on two questions:  The right to marry and the right to have out-of-state marriages recognized.  Because there are four states in the appeal with four different questions, the Supreme Court in accepting the appeals wrote the questions they will try to answer.  Some in the legal community were alarmed, but the New York Times quotes Harvard Law professor, Lawrence Tribe

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

But Professor Tribe also voiced a small note of caution.

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

I haven’t seen the appeal documents, but if the arguments are anything like those from Indiana and Wisconsin and I assume they are as those are the arguments being made nationally, the Supreme Court need to look no further than Judge Posner’s decision for answers and require the right to marry in all states.  And, after all, Justice Scalia has already concluded that once sodomy laws are found unconstitutional, same-sex marriage must follow.  I predict a 7-2 decision in favor of the right to marry.  We will see in June if I am correct.

Photograph:  Jabin Botsford/The New York Times

Death of an angry, unhappy man

I know that many were happy with the news of Fred Phelps’ death but when I first heard, I wasn’t quite sure how I felt.  On one hand, a man who protested at the funerals of men and women who died in combat would no longer be able to do so.  On the other, one could feel sorry for a man who could never get over his anger.  He was once a noted civil rights lawyer in Kansas  and won an award from the local NAACP, but even back then there were signs he was troubled.  The obituary in the New York Times notes

He earned a law degree in 1964 from Washburn University School of Law in Topeka, but his legal career was troubled from the start. According to the Southern Poverty Law Center, which describes Westboro Baptist as “arguably the most obnoxious and rabid hate group in America,” Mr. Phelps struggled to find people to attest to his good character when he wanted to be admitted to the bar, was temporarily suspended for professional misconduct, and was even sued for failing to pay for candy his children sold door to door.

He succeeded in winning settlements in discrimination cases he filed as a civil rights lawyer.

“Most blacks — that’s who they went to,” the Rev. Ben Scott, president of the N.A.A.C.P.’s Topeka branch, said in an interview with CNN in 2010. “I don’t know if he was cheaper or if he had that stick-to-it-ness, but Fred didn’t lose many back then.”

Mr. Phelps, with his wife, Margie M. Phelps, left, and daughter Margie J. Phelps, at a demonstration in Baltimore in 2007.

Mr. Phelps, with his wife, Margie M. Phelps, left, and daughter Margie J. Phelps, at a demonstration in Baltimore in 2007.

Phelps was disbarred in 1979.  While he has said that his anti gay crusade began because a grandson was propositioned he showed a predilection for child abuse.  Amy Davidson writes in the New Yorker piece titled “The Two Freds” about Fred Rogers and Fred Phelps

One unpleasant thing about Fred Phelps was the way in which he and his church members brought children to their protests and had them hold placards like the ones that Roberts quoted, and repeat slogans slurring gay people and praising divine killings. They tended to be Phelps’s own children or grandchildren—how else would you find an eight-year-old to damn Mr. Rogers?—and the bulk of his parishioners were his relatives. The obituaries refer to complicated loyalties and estrangements, but then, those of some very good people do, too. But one can see, in the hanging of hateful signs on children, the very opposite of Fred Rogers’s life’s project, which was to treat young people both morally and as serious moral actors. Mr. Rogers spoke of the intense drama of one’s earliest years, Supreme Court cases or no, and the way that friendship, above all, was orienting. Of the two Freds, he’s the one who endures. Phelps, and all his vitriol, will spin away.

Phelps and his congregation at Westboro Baptist Church (composed primarily, if not entirely of family) demonstrated everywhere.  They spread Phelps angry message at thousands of funerals of the well known and of ordinary people as well as at many events.  Phelps represented an angry God.  The New York Time obituary again

In 1998, he explained his view of a wrathful God in an interview with The Houston Chronicle.

“You can’t believe the Bible without believing that God hates people,” he said. “It’s pure nonsense to say that God loves the sinner but hates the sin. He hates the sin, and he hates the sinner. He sends them to hell. Do you think he loves the people in hell?”

So in the end, I feel sorry for a man filled with so much hate and anger.  I hope he can find peace in another life.

Photograph:  Jed Kirschbaum/Baltimore Sun, via Associated Press

St. Patrick’s Day 2014

I’m not quite sure I understand the whole controversy about openly gay persons marching in a St. Patrick’s Day parade.  The parade is just a celebration of heritage and the Irish are just as diverse as any other group.  Boston’s old Mayor, Tom Menino, simply didn’t march in the South Boston parade because of the restriction, upheld by a Supreme Court decision, that the parade organizers could choose who they wanted to march.  But new Boston Mayor Marty Walsh is, along with U. S. Representative Stephen Lynch, doing his best to broker a compromise that would allow Mass Equality to march with a banner.  I think the parade organizers that include a fellow called Wacko Hurley fear that their parade would turn into another gay pride march if they let any LGBT groups march.  Presumably, the LGBT community knows the difference: March is not June.  Plus, there is a picture from the 1992 parade, pre-Supreme Court decision,  that shows there is nothing to fear.

The parade is only a couple of days away, and Mayor Walsh is making one last try.  Most Boston and Massachusetts state-wide elected officials have already announced they are not going to march.  I think the only exception is Nick Collins, the State Representative from South Boston.

The 1992 South Boston parade after a court order.

The 1992 South Boston parade after a court order.

Kevin Cullen has a wonderful column in today’s Boston Globe about the Boston and New York City parades.

So Marty Walsh, God love ’im, is going to make one last-ditch effort to hammer out a compromise so gay people can march openly in Sunday’s parade in Southie.

As they say in the Irish-speaking Gaeltacht, from where Marty’s parents are from, “Beir bua agus beannacht.” Look it up.

Down here in New York, where its St. Patrick’s Day parade is older than the Declaration of Independence and lasts anywhere from six to seven hours, there’s the same standoff, with organizers refusing to let gay people march with banners that identify themselves as gay.

Mayor Bill de Blasio, as the Irish say, couldn’t be arsed when it comes to forging compromise. He boycotted the parade when he was the city’s public advocate. He’s not going to start marching now.

De Blasio’s predecessor, Michael Bloomberg, of the Medford [MA] Bloombergs, marched in the parade but de Blasio is about as different from Bloomberg as the Irish are from Irish-Americans.

De Blasio, who grew up in Cambridge, is married to a black woman and has biracial kids, so he’s not really into exclusion. But neither is he into cozying up to the New York Irish, who were in the corner of de Blasio’s primary opponent, Christine Quinn, who was the city council president.

The irony in this — and it wouldn’t be Irish if there weren’t irony — is that Quinn is openly gay. Which means, even when she led the city council delegation in the parade she wasn’t allowed to identify herself as being gay.

So the New York Irish wanted to elect an openly gay mayor but wouldn’t let her march in the parade as openly gay.

And people in New York think we’re nuts?

Mayor Walsh, on the other hand, had support from both the gay community and South Boston so he’s kinda caught in the middle.  But he has said that if he can’t work a compromise, he won’t march.

Linda Dorcena Forry

Linda Dorcena Forry

Boston also has this breakfast before the parade.  Politicians come and roast each other and try to sing Irish songs.  Last May I wrote about South Boston and the election of Linda Dorcena Forry.  I predicted that she would bring some life back to the St. Patrick’s Day Breakfast.  Dorcena Forry is Hatian American married to an Irish man.  The City Councilor from South Boston tried to wrest control, but tradition prevailed:  The State Senator who represents Southie hosts the breakfast.  So Bill Linehan is taking his ball and going to Ireland for the day.  I hope he realizes that this will make him the butt of a lot of jokes.  Whatever.Linda is doing her best to live up to my prediction.  First she announced that the Dropkick Murphy’s, Boston’s very popular Irish punk group, would perform.  Then the Boston Globe had news today of  her most recent announcement about the breakfast.

State Senator Linda Dorcena Forry’s groundbreaking debut as the first woman, first Haitian-American, and first Dorchester resident to host the storied St. Patrick’s Day breakfast on Sunday is apparently drawing some international attention.

Dorcena Forry announced Thursday that Enda Kenny — Ireland’s prime minister, or taoiseach — has agreed to attend the ribald political roast in South Boston.

The visit by a sitting head of state is a coup for Dorcena Forry, who promised to raise the profile of a breakfast that in recent years seemed to have lost some of its star power.

“I am honored that Taoiseach Kenny will join us for this year’s breakfast,” Dorcena Forry said. “I have had the pleasure of meeting the taoiseach during his previous visits to Boston. His attendance at the breakfast is a wonderful affirmation of the deep bonds of friendship between Boston and Ireland.”

No word on whether President Obama will be appearing either on tape or by live feed, but I wouldn’t be surprised.  The Prime Minister is not marching in the parade.

The times are rapidly changing.  Boston Beer Company (think Sam Adams) just announced they have pulled their parade sponsorship.  Wacko and his veterans group are doing a great job of killing the parade.  Meanwhile, the breakfast thrives.  Is there a lesson here?

Photograph of GLIB marching:  Marilyn Humphries

Red Sox, Celtics and Pride Week in Boston

Jason Collins spent time last season with the Boston Celtics (and he might be back next season) before he came out in a now famous Sports Illustrated story.  Last night Collins helped the Red Sox celebrate Pride Night by throwing out the first pitch to Manager John Farrell.  It should be noted that managers rarely do this.

The Boston Globe ran this story from the Associate Press

The 7-foot center was greeted with a nice applause when the PA announcer read the opening of the SI article: ‘‘I’m a 34-year-old NBA center. I’m black. And I’m gay.’’

Wearing a Red Sox jersey with the No. 98 on the back, Collins threw out the first pitch to Red Sox manager John Farrell.

Red Sox slugger David Ortiz feels everyone should support each other based on how they act.

‘‘Nobody knows what is perfect and what is not,’’ Ortiz said, sitting at his locker about three hours before the game. ‘‘If you are respectful and you do what you’re supposed to do, it doesn’t matter what you are and what you come from, people should respect you and love you the same way.’’

Collins wears 98 on his jerseys to honor Matthew Shepard who was killed in 1998, a decision welcomed by Shepard’s parents.

2015 Pride Night at Fenway

2015 Pride Night at Fenway

Hey Danny and Doc, bring him back to the Celtics!

By the way, the Sox won on a walk-off 3 run homer by – David Ortiz.

Photograph Jim Davis/Globe Staff

Civil Rights and President Obama: the Second Inaugural Address

“We, the people, declare today that the most evident of truths — that all of us are created equal — is the star that guides us still, just as it guided our forebears through Seneca Falls and Selma and Stonewall,”

Inaugural Addresses, particularly second addresses are not generally remembered.  There is John F. Kennedy’s “Ask Not” address and there is Lincoln’s Second address.  You could throw in Franklin D. Roosevelt’s Second.

Lincoln said these now famous words

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

FDR noted the 150th anniversary of the Constitutional Convention and spoke about the role of government.

“We of the Republic sensed the truth that democratic government has innate capacity to protect its people against disasters once considered inevitable, to solve problems once considered unsolvable. We would not admit that we could not find a way to master economic epidemics just as, after centuries of fatalistic suffering, we had found a way to master epidemics of disease. We refused to leave the problems of our common welfare to be solved by the winds of chance and the hurricanes of disaster.”

and pointed out that success would be judged not by adding wealth to those who already had wealth but whether it could

“provide enough for those who [had] too little.”

Add to the great second inaugural speeches of Roosevelt and Lincoln, Barack Obama’s.

John Nichols writing in the Nation said Obama’s speech “charts the arc of history that bends toward justice.”  The President took on  the unfinished business of civil rights – in equal pay for women, voting rights for minorities, and equal rights for gay and lesbian Americans.  He said

It is now our generation’s task to carry on what those pioneers began, for our journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts.

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well.

Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.

Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity, until bright young students and engineers are enlisted in our workforce rather than expelled from our country.

Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for and cherished and always safe from harm.

That is our generation’s task, to make these works, these rights, these values of life and liberty and the pursuit of happiness real for every American.

He echoed FDR

“We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few,”

I think the speech showed that second terms can liberate and that his second term will see him push unapologetically for an agenda that includes everyone – even Republicans if they choose to listen.

Photographs: Chang W. Lee/The New York Times and Doug Mills/The New York Times

Looking back at 2012 progressively

2012 was a pretty good year for those of a progressive/liberal political point of view and Winning Progressive has compiled a good summary.  You can read the entire article here, but I’ve pulled out some of my particular favorites – in my own order of significance.

First I have to talk about Mitch McConnell who not only lost his effort to make President Obama a one-termer, but last night voted to increase taxes.  (Although since it happened after we technically went off the cliff  at midnight, he will probably spin it as a decrease.)  I think he an John Boehner were the big losers last year, not Mitt.  Mitt is done with politics, but McConnell and Boehner have to continue to try to herd their Republican members and get re-elected.

President Obama re-elected

So now to some accomplishments.

* President Obama Re-Elected With A More Diverse and Progressive Congress– The November elections saw the re-election of President Obama and the election of four new progressive U.S. Senators – Mazie Hirono (D-HI), Elizabeth Warren (D-MA), Chris Murphy (D-CT), and Tammy Baldwin (D-WI).  In addition, Joe Lieberman (I-CT) is finally leaving the Senate!  On the House side, the Democrats elected in November will be the first major party caucus in US history that is majority female and people of color.  New House progressives will include Alan Grayson (FL-09), Jared Huffman (CA-02), Dan Kildee (MI-05), Ann McLane Kuster (NH-02), Grace Meng (NY-06), Patrick Murphy (FL-18), Rick Nolan (MN-08), Mark Pocan (WI-02), Raul Ruiz (CA-36), Carol Shea-Porter (NH-01), Mark Tacano (CA-41), Hakeem Jeffries (NY-08), and Kyrsten Simena (AZ-09).  On the flip side, tea party conservatives Allen West (FL), Chip Cravaack (MN), Bobby Schilling (IL), Roscoe Bartlett (MD), Ann-Marie Buerkle (NY), Francisco Canseco (TX), and Joe Walsh (IL) were all defeat and, hopefully, will never be heard from politically again.

* LGBT Equality– 2012 was, of course, a banner year for advancing LGBT equality.  For the first time in US history, equality was supported by a majority of voters facing ballot proposals approving marriage equality in Maine, Washington, and Maryland, and refusing to ban equality in Minnesota. The first openly lesbian U.S. Senator, Tammy Baldwin (D-WI) was elected in November as were a record seven openly-gay House members.  President Obama publicly supported marriage equality, and anti-equality forces in Iowa failed in their effort to recall a state Supreme Court justice who declared that state’s ban on marriage equality unconstitutional.  In February, a federal appellate court ruled California’s anti-marriage equality Proposition 8 unconstitutional, and two federal courts in 2012 did the same with the Defense of Marriage Act.

* Health Care Reform – In a decision that surprised many commentators, the U.S. Supreme Court upheld the Patient Protection and Affordable Care Act, aka “ObamaCare.”And while the GOP-controlled House has voted at least 33 times to repeal ObamaCare, President Obama’s re-election in November virtually guarantees that will never occur.   In implementing ObamaCare, the Obama Administration, standing up to strong opposition from conservative religious organizations, finalized rules requiring that contraception be included as a preventive health service that insurance policies must cover with no co-pay.  This will help millions of women afford access to birth control and also save money by reducing unintended pregnancies.

Those are my personal big three.

Yes, there is a lot left to do and a lot that happened that I didn’t particularly think was terrific, but on the first day of a new year, we should celebrate our successes!