Cautious Optimism - Marriage Equality: A Fundmental Right

As I write this, the Supreme Court of the United States (SCOTUS) is about to hear arguments on whether or not states have the ability to define marriage in such a way as to deny same sex couples the fundamental right of marriage.  SCOTUS will also hear arguments as whether or not states have the ability to deny recognition of same sex marriages performed in states where it is legal.

Trying to read the tea leaves, especially before oral arguments, is a fool's errand, but I have a feeling that in a 5 to 4 decision to come out this June, SCOTUS will finally bring marriage equality to all 50 states and the various territories/protectorates.  I think Justice Kennedy will write the majority opinion reaffirming the decision in Loving v Virginia which held that marriage is a "fundamental right" and that government has no business discriminating against same sex couples.

I am cautiously optimistic that marriage equality will become the law of the land.

Who Will Decide Hobby Lobby / Conestoga Wood and Why It Matters

Like 99.999999999% of Americans, I am no expert regarding the US Supreme Court (SCOTUS).  But, as the saying goes, I know enough about SCOTUS to be dangerous.  It is a time honored tradition to try and guess what the SCOTUS will do and I will be partaking in that tradition today.  In fact, I am going to try to diving who will write the opinion in Sebelius v. Hobby Lobby aka Hobby Lobby / Conestoga Wood (Hobby Lobby), for who writes the opinion will determine if the decision is (based on your ideology) is good, bad or ugly.

So here we go, starting with the one I think will be the author of the opinion.

Justice Anthony Kennedy: When it comes down to it, Hobby Lobby is about social issues, specifically, the ability of employees to have access to contraceptives through their employer provided health plans.  Except with respect to the matters of abortions and voting rights, Justice Kennedy tends to be on the moderate/liberal side of social issues.  Take for instance his authorship of the opinions in Romer v. Evans,  Lawrence v. Texas and United States v. Windsor.  Both decisions expanded equality under the law to gays and lesbians.  If Justice Kennedy writes the opinion, which I believe he will, look for the court to decide that corporations, even privately held family owned ones, do not have religious liberty, reversing the 10th Circuit Court of Appeals.  The decision would be 5 - 4.

Justice Antonin Scalia / Justice Clarence Thomas: In my view, these two justices are almost interchangable.  Based on their history of supporting the concept of "corporate personhood", either Justice would easily vote to give all corporations religious liberty and the ability to use religion as an excuse to discriminate against its employees.  Either would affirm the 10th Circuit Court of Appeals.  The decision would be 5 - 4.

Chief Justice John Roberts: His potential authorship is what scares the hell out of me.  Seeing how much he loves to "split the baby" when it comes to decisions, his authorship could only spell ugliness.  Take for instance his authorship of the ACA decision where he upheld the ACA but struck down the provision requiring States to expand Medicaid, thus overturning the "power of the purse" legal concept.  This has left millions of Americans in States that refused to expand Medicaid without affordable medical care.  If the Chief Justice is the author, look for him to declare that non-publicly traded wholly family owned corporations have religious liberty while publicly traded and/or non-wholly family owned corporations do not.  It would be a 6 - 3 decision with Justices Scalia, Thomas and Alito in dissent.

Again, this is all speculation.  Who will be the author of the Hobby Lobby decision is anyone's guess, but it is very important as to who will write it.

Supreme Court Kicks Open Door to Tax Payer Funding of Religious Schools While Closing Door to Tax Payers for Relief

In a 5-4 decision, the five Roman Catholic* justices affirmed the ability of the Arizona legislature to divert tax payer monies to parochial schools through the use of tax credits while denying the right of tax payers to challenge such diversions.  By denying standing to the plaintiffs in the 14 year old case, the Supreme Court basically closed the door to all tax payers to challenge laws that funnel monies to parochial schools and institutions in breach of the separation of church and state.

A little history, as I understand it.  In Arizona, a person may "donate" monies to a "scholarship" fund that supports students of private and parochial schools.  Those "donated" monies then are reimbursed dollar for dollar up to $1000 in the form of tax credits.  Not tax deductions but tax credits.  The state claims that since they are giving a credit only for the "donation" it is not funding private or parochial schools.

The Supreme Court today, for all intents and purposes, agreed with the state.  But they did so in the insidious manner of denying "standing" to the plaintiffs.  In other words, the 5 conservative justices said "fuck you" to tax payers who feel that the state is willfully breaking through the wall that separates church and state.  The conservatives on the Roberts Court enjoy denying standing when they cannot twist the Constitution enough to support their agenda.  In this particular case, they basically shut the court house door to any tax payer who has a gripe about how tax payer monies are spent.

So, even though my tax payer monies are being spent to support parochial schools, the Supreme Court has ruled that I have no standing to challenge such support.

I guess only the rich, powerful and corporations will now have access to the Roberts Court.

*I use the term "Roman Catholic" to denote that the 5 justices (Roberts, Thomas, Scalia, Kennedy and Alito) are all of the conservative strain of Catholicism.  I am also of the opinion that Roberts, Scalia, Alito and possibly even Thomas are of the Opus Dei strain of Roman Catholics, thus making them ultra-conservative Catholics.  This is not to demean Catholics, but merely to point out that the decisions by the 5 conservative justices often adhere to the orthodoxy of the very conservative strain of Catholicism.

Arizona Clean Elections is Doomed: McComish v. Bennett Oral Arguments

I think this question by Justice Kennedy shows us how the Supreme Court will rule on McComish vs. Bennett:

Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?

As I mentioned in my post last night, Chief Justice Roberts along with Justices Scalia, Alito, Thomas and Kennedy will most likely strike down the Arizona Clean Elections law.  This will expand their tainted concept that money equals speech and that the more money someone has the more speech they get.

I truly wonder how they sleep at night, twisting the very ideal of free speech in such a convoluted manner in regards to elections.  They won't allow a student not on school property to hold up a sign promoting the use of marijuana but they will allow the free and unadulterated flow of money into political campaigns.

Today's oral argument was a sad day for the United States and the ideals it was built upon.  When the decision is handed down, unless by some miracle, it will be an even sadder day.

*UPDATE* Dahlia Lithwick over at Slate has a nice summary of today's oral arguments.

There are probably only about 10 guys in America who are cheerfully unconcerned about the influence of multimillionaires on elections. One of them is Charles Koch. David Koch is another, as is Karl Rove. Gov. Scott Walker of Wisconsin and the guy with the top hat on the board of the Monopoly game are two more. Luckily for them, the other five guys currently sit on the U.S. Supreme Court. And judging from this morning's argument in McComish v. Bennett, there is no principle those five justices will fight harder to preserve than the right of the impossibly wealthy to purchase as much speech as they want and need to win a political campaign.

*UPDATE 2* Here is a link to the transcript of today's oral arguments.