Spring in Vermont

I’ve been gardening like crazy.  My husband and I have taken out 90% of what the previous owners had planted including the trees and have replaced them with lilacs, blueberry bushes, forsythia, and a serviceberry bush.  We also replaced two maples with a stewartia tree. (I put in a link because you probably never heard of one before. We hadn’t.)  Plus annuals and lots of perennials.  I figure that you can always take stuff out next year that doesn’t work.  All of this has helped take my mind off the mostly bad news that seems to keep coming.

Our young Stewartia tree with flowers.

Our young Stewartia tree with flowers.

Last week we caught a little break.  The Supreme Court made two decisions that, contrary to the dissenters, I think will be positive in the long run.  The first upheld the subsidies for the Affordable Care Act; the second, legalized marriage for everyone in all states.

Marriage equality began here in New England as all the local media have proudly told us.  Vermont legalized civil unions and Massachusetts was the first to sanction marriage.  As one news reader noted, “Today’s decision doesn’t really effect New England as same-sex marriage in already legal in all six states.”  That is a paraphrase, but a fact of which most New Englanders are very proud and contrasts to the defiant words from some of the Republican Presidential candidates.  Reminds me of the governors who wanted to stand in front of the school house door to prevent school integration.  Conservatives are always arguing that marriage leads to more stability so I can’t really understand why they aren’t pleased that more people will be getting married.

On the ACA, I wonder if some of the New England states like Vermont that are struggling with the necessary automation and connections to the federal exchange will just move to the federal exchange all together.  And I also wonder if states that never expanded Medicare will do so now.  But with Congressional leaders and most of the Republican Presidential candidates still hoping to repeal “Obamacare”, that is probably not likely.  In the meanwhile, more people are getting insurance and as they begin to get preventative care, costs should continue to drop.  Insurance companies, like most of us, like stability something the pro-repeal Republican should remember.

As spring slowly turns to summer here in Vermont, I’ve been thinking a lot about race.  As with many things we seem to be taking one step forward and two back.  Who would have predicted in 1964 that in 2015 we would need a new voting rights act?    Or that the unspoken racism of one of the major political parties would lead to a mass shooting in a black church?  Yes, I mean the Republican party with opposition to everything proposed by President Obama.  You can’t convince me that if the current Democratic president were someone like Jerry Brown or Tim Kaine opposition would be as virulent.  Race is at the core.  All those Senate Republicans who want to be president could prove me wrong by supporting the new voting rights legislation.  As the Washington Post pointed out, they once did so.

The Sunday after Charleston my husband and I drove down to Boston to attend church.  We wanted to attend his home church, an historically black church of which he became the first white member over twenty years ago.  The service is still traditionally African-American, but the worshippers are black, white, and Asian.  It was comforting to sit with people I have known for so many years as well as with the newcomers.  The young pastor spoke first about being “sick and tired of being sick and tired” and went on to talk about faith.  We were all given little packets of mustard seed by the children to remind us to keep the faith.  I’m finding that gardening is another way to find a measure of peace and faith that things change.  In the garden one can see the entire cycle:  planting, growth, blooms, death.  And then it begins again next spring.  We just need to keep the faith.

Photograph:  Bob Wyckoff

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

Like a speeding locomotive

That’s the image that comes to mind when I think of how quickly things have moved when it comes to marriage equality.  It has only been 10 years since same-sex marriage became legal in Massachusetts.  And only a few years longer that that since Vermont adopted civil unions.  For a while I was keeping track and blogging every time a state was added, but I just couldn’t keep up – or keep track.  Now Federal benefits are available to all legally married couples regardless of the state in which they reside and the Supreme Court is letting stand Appeals Court decisions ruling prohibitions unconstitutional.

According to a post in the Washington Post’s “The Fix”, most gay Americans now live in states with marriage equality.

As the map of where gay marriage is legal has shifted and changed over the past few years, we’ve tracked a harder-to-measure component of the new laws: How many gay Americans live in states that allow them to marry.

In June, we anticipated that the tipping point was imminent. Based on data from Gallup surveys in 2012, a higher percentage of the country’s gay population already lived in gay-marriage-legal states than the population on the whole. With Monday’s Supreme Court non-decision, the percentage of gay Americans and Americans on the whole living in states where gay marriage is legal topped 50 percent.

Gay Marriage map

I am unclear as to how Gallup determined the percentage of person living in a state who were gay or lesbian, but given the way Gallup polls, I assume it is by self-reporting in response to a question.  According to the Fix, marriage equality has arrived in states with a lower population of gay residents.

So what happens next is anyone’s guess but with the growing numbers of same-sex marriages, I’m not sure how a Supreme Court ruling to the contrary could be implemented without chaos.  A more likely scenario is a decision like the one in Loving v. Virginia.  When the Court finally ruled on interracial marriage, the majority of states already allowed such unions.

This does not mean that the opposition will not fight on.  A story in the New York Times today reported that

Leading opponents of same-sex marriage vowed on Wednesday to push ahead with their legal fight, noting that several federal appeals courts had not yet ruled on the issue and that the Supreme Court could still decide to leave it up to the states.

Even as the list of states authorizing same-sex marriage swells, the opponents noted Justice Anthony M. Kennedy’s order on Wednesday totemporarily block a federal appeals court ruling striking down the marriage restrictions in Idaho. The temporary order came as a surprise to many advocates on both sides of the issue, since the Supreme Court on Monday had allowed similar decisions from three other appeals courts to take effect.

“The marriage battle will continue,” said Jim Campbell, a senior legal counsel at Alliance Defending Freedom, a Christian legal group that has defended marriage restrictions in several states.

Opponents seem determined that each state should have a right to define its marriage laws, but that just doesn’t seem likely to me given the Loving decision as a precedent.

“If the liberals on the court had the votes to declare same-sex marriage a constitutional right, why didn’t they take any of the cases on offer Monday?” asked Brian Brown, the president of the National Organization for Marriage.

“That gives hope that the Supreme Court will not launch another Roe v. Wade,” Mr. Brown said, referring to the 1973 decision legalizing abortion nationwide.

Mr. Brown also rejected the argument that, once same-sex marriages had been allowed in many states, the law could not be rolled back if the voters wanted to do so.

But most legal experts drew the opposite conclusion from Monday’s action.

“We know, from the court’s willingness Monday to allow all these marriages to go forward,” that opponents of same-sex marriage “are virtually guaranteed to lose” before the current Supreme Court, said Michael C. Dorf, a constitutional expert at Cornell Law School.

In the meanwhile, I have friends getting married, both same-sex and opposite sex.  I also have friends in both categories who have or are getting divorced.  All people want is to live their own lives and to have the legal protections due them.  I think the opposition needs to get out of the way of the speeding locomotive.

Map:  The Washington Post

 

 

Official end to California’s Prop 8

I woke up this morning to this news from the New York Times

Gay Couples Who Sued in California Are Married

Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons, were married at San Francisco City Hall by Attorney General Kamala Harris on Friday.

Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons, were married at San Francisco City Hall by Attorney General Kamala Harris on Friday.

The two couples who sued to overturn California’s ban on same-sex marriage were married late Friday afternoon, just hours after the United States Court of Appeals for the Ninth Circuit, in San Francisco, lifted the stay that had been in place.

The court had stopped same-sex marriages while the case wound its way through the Supreme Court, which issued its decision to clear the path for same-sex marriages in California on Wednesday.

Attorney General Kamala Harris rushed to San Francisco City Hall within minutes of the ruling to perform the wedding for Kris Perry and Sandy Stier, who have been together for more than 15 years and have four sons.

And in LA

Mayor Antonio R. Villaraigosa of Los Angeles, on his last workday in office, officiated at the Friday evening wedding of Paul Katami and Jeffrey Zarrillo, the two other plaintiffs in the case. Until Friday afternoon, they had no idea when their marriage could take place.

“Nobody really knew; that’s what our lawyers are there for. We don’t really care about any of that at this point, but we’re on our way to see the mayor,” Mr. Zarrillo told KCRW, a public radio station in Los Angeles.

The pair were stuck in traffic en route from their home to the county office to obtain their marriage license and then to City Hall downtown. But by 6:30 they walked in front of dozens of television cameras, kissed Mayor Villaraigosa and were pronounced married.

“Your relationship is an inspiration to us all,” Mr. Villaraigosa said. “Today, your wait is finally over.”

“Equal feels different,” Mr. Katami said. Mr. Zarrillo added, “Equal feels good.”

The Ninth Circuit acted with unusual speed.

Many legal experts and advocates had expected the court to wait for an official decision from the Supreme Court, as is the normal practice. But after the initial ruling was issued on Wednesday, Ms. Harris urged the Circuit Court to act immediately and said she would ensure that all counties in the state were prepared to issue licenses to same-sex couples.

Just after 3 p.m. Friday, the three-judge panel issued a one-sentence ruling lifting the stay on a district judge’s injunction to not enforce the ban on same-sex marriages.

Gov. Jerry Brown issued a statement late Friday afternoon saying that he had directed the state’s Department of Health to notify all 58 counties in the state that “same-sex marriage is now legal in California and that marriage licenses must be issued to same-sex couples immediately.”

I know there had been some confusion about the impact of the Supreme Court decision.  Some thought it would only apply to the plaintiff, but since the District and Appeals courts had already ruled Prop 8 unconstitutional it turns out that only the stay had to be lifted.

From Massachusetts:  Welcome to Marriage Equality, California!  And an aside to the opponents – don’t worry, the sky will not fall.  This is number 13.  Which state will be next?

Photograph:  Jim Wilson/The New York Times

Pot and Gay Marriage

If you look at the referenda that passed in the various states, I’ve heard it said that you can smoke weed, but you can’t get married to someone of the same sex.  Homophobia is alive and well.

Particularly disturbing is the passage of Proposition 8 in California.  I wondered if it were legal given the ruling of the California Supreme Court and it seems that others are asking the same question.  Several lawsuits have already been filed saying it is a violation of the equal protection clause of the California Constitution.

Here in Massachusett same sex couples can both marry and smoke pot!