Marriage Equallity Gets Great Field Position On A Punt From SCOTUS

Sometimes, when the Supreme Court of the United States (SCOTUS) decides it really doesn't want to deal with an issue just yet, it will do what we like to call a "punt".  That is, without comment they decide to let various appellate court decisions stand.  Today, October 6th, 2014, SCOTUS did just that in regards to various marriage equality cases attempting to be reviewed by SCOTUS.

Just as we saw in several NFL games this past weekend, a punt can be a wonderful thing, for either team.  In the case of marriage equality, it is now legal for same-sex couples to get married in 24 states and the District of Columbia and in a very short time, it will be legal in 30 and Washington D.C.  That is incredible field position for advocates of marriage equality, such as myself.  In essence, to further push the football analogy, with the punt from SCOTUS, anti-marriage equality forces are stuck on their own 10 yard line with two minutes left on the clock, only one time out left , down by nine points and their quarterback is playing injured.

But, as we also saw this past weekend, the fortunes of any team can be turned around in the last two minutes.  So we need to watchful of the decision soon to come out of the 6th Circuit Court of Appeals, which could be the first appellate decision against marriage equality.  If that is the case, SCOTUS will most likely need to take up the issue of marriage equality for a full hearing.  I just hope it doesn't come down to the that.

Someone Was Paying Attention (Hint: It Wasn't The NSA)

As we all know, there are two cases coming before the Supreme Court (Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius) that argue the novel (if not insane) concept that corporations/businesses have religious liberties.  Both Hobby Lobby and Conestoga Wood ground their arguments in the 1993 Religious Freedom Restoration Act (RFRA) that the contraception mandate in the Affordable Care Act (ACA aka Obamacare) places a non-acceptable burden on the religious liberties of these two corporations.

A coalition of organizations* were paying attention though and have filed an amicus brief asking the Court to rule whether or not the RFRA is even constitutional.  In my view, this is a very welcome game changer.  Let us hope the Supreme Court takes the brief seriously and considers the constitutionality of the RFRA.

I want to thank Lyle Denniston over at the SCOTUSBlog for writing up an easy to read article regarding this amicus brief.

*The coalition that filed the amicus brief is made up of the following organizations:

1.  Freedom From Religion Foundation

2.  BishopAccountability.org

3.  Children's Healthcare Is A Legal Duty, Inc (CHILD, Inc)

4.  Child Protection Project

5.  Foundation To Abolish Child Sex Abuse

6.  Survivors For Justice

7.  Survivors Network Of Those Abused By Priests

Lots of Words, But No Action

I want to thank all of the U.S. Senators, Democratic Senator Tim Johnson of South Dakota being the latest (at the time of writing), who have come out in support of marriage equality.  The words you have spoken are very loud indeed, but as they say, actions speak louder than words.  So my question to all of you have come out in support of marriage equality is this: Where is the bill to repeal the atrocious "Defense of Marriage Act" or DOMA?

I have to wonder why none of them have introduced the bill to repeal DOMA.  Is it because they are scared of a political backlash in their home states?  Are they waiting for the U.S. Supreme Court to strike down DOMA this summer?  Is it because they are sure repeal of DOMA will fail in the House of Representatives?

No matter the reasons they may have for not filing the bill to repeal DOMA, the reasons aren't good enough.  Not to me and not to the millions of gays and lesbians who will forever be treated as second class citizens as long as DOMA is law.  It is passed time for each of these Senators to show some real leadership and not just offer rather empty platitudes.

REPEAL DOMA!

California's Prop 8 at The Supreme Court - Updated - 2nd Update 2:49 pm

As I write this, the United States Supreme Courts is about to begin oral arguments in Hollingsworth v. Perry, better known as the California Prop 8 case.  It is a scary proposition to have this particular Court with its conservative majority that seems hellbent on reversing the progress of civil rights in the past century to hear this case.  No matter how oral arguments go today (an audio recording will be available later today), we probably won't know until June what the outcome will be when the decision is handed down.

Of course, we will all be trying to read the tea leaves of what is said in oral argument by the Justices via their questions (almost statements).  And of course, all eyes and ears will be on Justice Kennedy, the author of Lawrence v. Texas as he is expected to be the swing vote.  Will the Court follow in the steps of Loving v. Virginia by reaffirming the fundamental right of marriage and thus striking down gay marriage bans across the nation?  Or will the Court deal a staggering blow to the marriage equality movement by declaring that Proposition 8 is constitutional and there isn't a fundamental right for same sex couples to get married?

Or will the Court punt?  In my honest opinion, I think they will punt (especially if Chief Justice Roberts is the author) and they will do so in one of three ways:

1. They could declare that the Plaintiffs (the proponents of Proposition 8) do not have standing which would mean that the Ninth Circuit Courts narrow decision striking down Proposition 8 relying on Romer v. Evans.
2. They could be California specific and ruling that Proposition 8 is unconstitutional based on Romer v. Evans while holding that the proponents of Proposition 8 do have standing.
3. They could find that domestic partnerships (of which California has such a law) violates the 14th Amendment and thus those 9 states with domestic partnerships for same sex must allow for same sex marriage.

As I said, it is anybody's guess as to how the Supreme Court will rule, even if my friend Justin is pretty sure the decision will be sweeping and reaffirming Loving v. Virginia.  We all be on pins and needles until June and that fateful day.  But honestly, I never thought I would see this in my lifetime.

A hat tip to SCOTUSblog for their incredible coverage of the marriage equality cases and also a hats off to Chris Hays who, in his final show as the host of MSNBC's UP, had a full hour discussion on the marriage equality cases before the Court featuring Dan Savage.  I am including those videos below.

*UPDATE* Tom Goldstein, over at SCOTUSblog, doesn't have a lot of good things to say about oral arguments today.  Kind of scary.

*2ND UPDATE* The audio recording of today's arguments have been released and I am including them here.

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Marriage Equality Update

Even after the victories for marriage equality in Maine, Washington and Delaware (and to a lesser extent Minnesota), all eyes will be in the US Supreme Court this Friday as they head into a long delayed private conference to tackle 6 petitions related to marriage equality.  Two of the cases involve a right previously recognized and then removed by either popular vote, Proposition 8 in California, or by legislative action as in regards to the case out of Arizona.  The remaining petitions deal with the notorious so called Defense of Marriage Act or DOMA which denies federal recognition of same-sex marriages.

The question they will answer in conference is which, if any, of the cases they will hear oral arguments on.  They could deny cert and let the lower courts' decisions to stand without comment, they could decide to hear each of the individual cases, combing those asking the same basic constitutional question or they could remand to the lower courts with or for clarification.

After talking to a friend who has experience with the Supreme Court and considering the ideologies of the individual justices, I believe the following decisions will be made:

• Prop 8 and Arizona - Both cases basically come down to can a right that was recognized be taken away.  In both cases, the 9th Circuit ruled that no, you can't take a way a right previously recognized.  I think the Supreme Court is going to deny cert in both cases.  As much as certain justices might be biting at the bit to rule one way or the other, I believe that they don't want to delve into this issue just yet.  By denying the cert, they don't have to rule on the broader issues and the decisions of the lower courts are narrow enough for the Justices to feel comfortable in denying cert.
• DOMA - I think the Justices will agree to hear the cases, but in a combined format.  I also think that the Justices will punt by deciding which standard of scrutiny the various courts are supposed to use in regards to marriage equality without dealing with whether or not DOMA is constitutional.

As anyone knows with the Supreme Court, any guess as to how the Justices will decide is just that, a guess.  What we can be assured of is that President Obama will most likely have the opportunity to appoint three, maybe even four justices.  This fact could way heavily on the Justices or it may not matter at all.

Lyle Denniston over at SCOTUSBlog is doing a great preview of the cases.  Be sure to check it out for more views.

Hypocrisy of the Arizona Republic

The Arizona Republic is miffed.  Well, more to the point, the in the shadows “Editorial Board” is miffed.  They are miffed that there endorsed golden boy (and lobbyist) in the Phoenix mayoral elections, Wes Gullett is being targeted by “anonymous groups” that “hide behind vague, meaningless names”.  The E.B. is clutching its collective pearls in disgust at the large amounts of money being poured into these “independent expenditure” groups without any disclosure as to who the group’s funders are.

Sigh.  I would have no qualms with the E.B.’s stance if it wasn’t so hypocritical.  Not once have they called out for the disclosure of those funding a group that is attempting to make sure that Republicans continue their super-majority in the Arizona Legislature and advantage in Congressional seats.  Instead of calling for a disclosure of this group’s donors (which is fronted by local attorney David Cantelme), the E.B. attempts to protect its golden boy.

It is beyond time for the Editorial Board of the Arizona Republic to call for full disclosure of the principles and financiers behind the FAIR Trust.  It is beyond time for the E.B. to call out this organization for attempting to circumvent the will of the Arizona voters by trying to suppress competiveness and to preserve the Republican legislative super-majority.

But the E.B. won’t.  It doesn’t have a golden boy to protect when it comes to redistricting.  Therefore, the Editorial Board of the Arizona Republic will continue to be hypocrites when it comes to “shadow organization” that use the Supreme Court’s Citizen’s United decision to pollute our nation’s elections.

Marriage Equality Symposium

My friends over at SCOTUSblog have been having an interesting online debate regarding same-sex marriage for the past couple of weeks.  I recommend that everyone takes a bit of time and takes a look at what the various participants have been saying.

Arizona Christian School Tuition Organization v. Winn: Expanded Thoughts

As I wrote last night, the U.S. Supreme Court ruled 5-4 to deny standing in Arizona Christian School Tuition Organization v. Winn.  The Court didn't rule in the merits of the case, as it hadn't gone to trial yet, but instead punted hard and made it virtually impossible for tax payers to bring law suits against a government for programs that they disagree with on the basis of being a tax payer.

I despise the dollar for dollar tax credit (up to $1000 for families) for those who "donate" to organizations that are supposed to provide "scholarships" to those attending private and parochial schools.  At a cost to Arizona tax payers of around $95 million a year, while funding to public schools is being slashed, its not only a waste of money but an unconstitutional subsidy to religious schools.  In Arizona it is actually part of our state's constitution that the government cannot provide funding to religious schools.

The Arizona legislature seems to have found a work around the prohibition and the U.S. Supreme Court has made sure that no one can challenge it in the courts.  So here is a question: Would the five conservative justices have punted by denying standing if the Arizona legislature was instead using tax credits to provide funding to LAMBDA Legal?  Would they even have taken the case after the 9th Circuit ruled that those bringing the suit had standing?

The 9th Circuit, in their ruling, made it very clear that the plaintiffs in A.C.S.T.O. v. Winn would most likely win the case on the merits if the suit were allowed to go forward.  But the Roberts Five couldn't allow that to happen, because then they would have to rule on the actual merits and I think even they would be hard put to find a constitutional way to support the Arizona tax credit law.  That is why they punted so hard using the issue of standing.

This ruling will also embolden the Arizona legislature to expand the tax credit program at the expense of public schools.  It will also embolden conservative legislators across the nation to mimic the program in their own states.  Public education and tax payers will be the losers and the only way to stop it is for liberals to control the various legislatures.  In Arizona, there is a better chance for Pima County to secede from the state than for liberals to take control of the legislature.  But one can hope and one can also hope that the makeup of the Court will change soon.

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.