Puppet Theater: Obergefell v. Hodges Part 3

Part 3 of 3.

Liam '15

Puppet Theater: Obergefell v. Hodges Part 2

Part 2 of 3.

Notice how there is no Thomas puppet.


Liam '15

Puppet Theater: Obergefell v. Hodges Part 1

Liam '15

Ugh Damn You Idaho...

... because now I have to update the marriage map to include Alaska and Idaho.

Bastards making me do work.


Liam '14

"Virginia is for Buttfuckers" Probably Won't be Their New Slogan

On October 6, the Supreme Court denied cert. to the 490 kagillion 7 marriage cases before the Court. 

I celebrate the fact that on Monday morning, 58.92 percent of the country will have full access to consensual marriage based off of 2013 population projections.

Prior to last week’s non-decision-decision, I listed several reasons as to why this will be a historically significant failure of the Court. In around two years it appears that every jurisdiction in the United States will acknowledge marriage equality, without the Supreme Court acting.

In the upcoming months after Texas and Florida (and a few other stragglers) recognize marriage equality, around 89.90 percent will be able to, with consent, marry whomever they choose. 

But that still means that tomorrow, around 40 percent of gay people will have fewer rights than heterosexuals on death row. It also means that due to the timing, there will be no decision like Loving v. Virginia for gays. The Roberts Court will not be viewed by kindly by history over their non-decision, like the Warren Court. There is no apology for 230 years of legal discrimination.

I am reposting this graphic created by Randall Munroe at xkcd.com, who created a graphic that explains my feelings better than what words can express.

http://xkcd.com/1431/

Go to xkcd.com for more fabulous cartoons.

Liam ‘14

Why?

On August 22 for SCOTUSblog Lyle Denniston wrote an in-depth article on divining the will of the Supreme Court in regards to certain types of same-sex marriage:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

Just as a refresher, the Supreme Court upheld the stay for the 4th Circuit and the 10th Circuit, but has allowed marriage to proceed in Pennsylvania and Oregon based on the logic put forward in Hollingworth.On the face it does appear to be a bit of a mix signal. The article goes on to say:

The Court had been urged, by all sides in the Virginia case, to speed up the process of finding a case for review by turning a simple request for delay into an actual, formal petition — a move that could have cut short several procedural steps, and set up the Virginia case as a prime candidate for review.

The Court silently refused the suggestion, simply delaying things in Virginia until after a county clerk actually files a petition for review, in the usual form and on the usual timetable.  That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy.

Obviously it would be nice if the Supreme Court would speed up the process, yet it is the Supreme Court. Perhaps the entire circumstance can best be summed by the sentence, "That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy."

Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

In a weird way this article tells us everything and nothing. I do not find it unusual for the the Supreme Court to resist from being pushed into doing anything. And as for giving signals, the Supreme Court is notoriously leak-proof. 

There are two issues that emerge after reading the article: will the court even take up the issue and its significance; and why is there such a sense of urgency around this issue.

After reading the article, it is apparent that certiorari is not guaranteed. Due to the massive number of federal cases that have moved in the last year, it is tempting to say the Supreme Court will act; even though as Mr. Denniston has pointed out, marriage equality is a "hot constitutional controversy."

Though it is unlikely, what would it mean if the Court were to deny certiorari? The practical effect is that all the jurisdiction where marriage equality has been acted on by a court, but where a stay is in place, same-sex marriage will be legal. So if certiorari were denied tomorrow, the map would look like the following:

86.4% of American would live in a state with marriage equality. 

Denial of certiorari would probably be the greatest failing of the Robert's Court. It has been 47 years since Loving v. Virginia and now is the time. I mean for fuck-sake, Felons in prison have a constitutional right for 26 years when the Court granted it in Turner v. Safley, 482 U.S. 78 (1987). Felons before gays... felons, you know the people who can't vote because the have done bad things, people segregated from the rest of the population and locked away because they have done terrible things. They can get married. So, yah, if they don't act fuck 'em.

Addressing the second question, the urgency of the issue comes from the opposing sides, each with their own motivations.  The marriage opponents want the Supreme Court to put a quick end to the spread of marriage equality. The longer lower courts are able to issue pro-equality rulings, the more jurisdictions will issue pro-equality rulings.

For the marriage supporters, it is an issue of cruel fact that every minute of life counts. According to the CDC in 2011 In the US there were 2515458 deaths. Based on the controversially low CDC figure, 1.6% of the population is gay. Currently 43.5% of the US population lives in a state where same-sex marriage is currently available (places where gays can walk on down to the county clerk and actually get married.)

Therefore, around 62 gay people die each day unable to get married, or around 22,740 per year.

This year, two prominent women in the equality movement died. In March, Vernita Gray, who married Pat Ewert in Illinois, unfortunately passed away. While earlier this month, Fredia Hurdle, who was among the Plaintiffs in the Pennsylvania case, passed away unexpectedly before she could marry her partner of 24 years. My morbid point is that everyday for a large number of Americans, our rights come too late.

Liam '14

Let's Welcome Kentucky to the 21st Century

Today the Courts ruled in favor of in-state marriages. Yay!

So let's update the mother fuckin' map.

Boom!

Stay issued of course, but onward we march.

Liam '14

Update: Kitchen Upheld and Indiana WIns Big

The 10th Circuit Court in a 2-1 decision, issued a broad ruling upholding the District court ruling. A stay was also issued until Certiorari . As a result marriage equality has spread throughout the entire 10th Circuit, but due to the stay, marriages will not be granted, unless the state officials in the other marriage lawsuits dismiss their cases.

Also Indiana surprised everyone when a Federal Judge struck down the state marriage ban. And immediately people were gay married. Like in less than an hour. I mean crap, I couldn't find my birth certificate in less than an hour. So good for them.  Their marriage may have set some new ground speed record or something.

Anyway, to celibate today's wins I have update the map:

So Mazel Tov to the handsome grooms of Indiana.


Liam '14

Sunday Morning Slander

I have to admit I was kind of struggling this week looking for material for this segment, which for sanity's sake is probably a good thing. But then this morning I saw a video, and I knew then and there I had found the one, my precious douchebag. *Sniffle*

On Thursday around noonish, a bunch of goons from NOM invaded the Capitol steps to tell 'em what they really think.

And then there was Huckleberry Hound Mike Huckabee.

Source. Go visit right wing watch.

I frequently prefer to read an article rather than listen to it, so here is a transcript of what he said:

The President and the Congress are not required to defy natural law.[1] They're not required to redefine marriage.[2] They are required to follow the will of the people, the Constitution, and the law that has given us the greatest nation on earth, a nation that we will lose, if we turn our backs on our origins.[3] There is no doubt in my mind that this country would not exist had it not been for the providential hand of God. I'm also convinced if we reject his hand of blessing we will feel his hand of judgment.[4]

[Break]

And it's time for us as an American people to say to our own government “Enough of you restricting us. Enough of you redefining our institutions.[5] We are not under an obligation to defy God in order to obey you. We are under an obligation to obey God and the law and if necessary to defy an institution that is out of control.”[6]

Ugh, I'm so sick of word salad. That's what I had for dinner last night. Perhaps it's because the video was an excerpt from a longer speech, but little sense making it was.

I will try to break it down into bit size pieces of WTF:

[1] I do not understand what natural law has to do with any of this quite frankly. It's literal a head scratcher due to the way it is worded. Is he trying to say "the President and the Congress are unnecessarily defying natural law"?

[2] Congress and the President are not redefining marriage. To play along with your venacular it's dem court thingys in dem buildins wit dem men folks who haz that there hammer do-hickey dats redefining marriage. The current gay rights movement is seeing it's largest successes through Article III jurisdictions, rather than through the legislative process or administrative law. By the way ain't ya a former governor who really really should know better? Numb-nuts.

[3] "They are required to follow... the Constitution." The judicial system is following the constitution in extending equal protection to all citizens by extending marriage privileges. Also a majority of people are in favor of marriage equality. You were against the tyranny of the minority when it was basically only gays in favor of gay marriage, so let me guess you now will be against the tyranny of the majority/minority. Dumb-ass.

[4] "I'm also convinced if we reject his hand of blessing we will feel his hand of judgment." Congrats Mike you are now as relevant as William Jennings Bryan. Jack-ass.

[5] "And it's time for us as an American people to say to our own government 'Enough of you restricting us.'" Hah hah hahahahahaha aaah haha. Do you hear yourself at all? Dumb-Fuck. Perhaps it's a wrong language thingy. Verstehen Sie, warum das heuchlerisch ist? Homo-Ehe beschränkt nicht die Zivilrechte oder die Freiheit der Mehrheit. Homo-Ehe gibt die Homosexuallen Zivilrechte. Arschloch!

Please don't make me whip out the french.

[6] Huh? I honestly am just perplexed by the rest of the statement. "We are under an obligation to obey God and the law and if necessary to defy an institution that is out of control." So does that mean he is advocating Christianists to not get married? Or defy the government, in which their participation in gay marriages isn't required?  Dick-for-brains.

UPDATE:

I found a longer video:

Liam '14

Sunday Morning Slander

I am in too good of a mood to make this a longer post. The sun's up, the birds are out, and focusing in on dickheads rather than dick seems like a waste.

I was originally going to write a short post about Rob Schlein, the Texas Log Cabin Republican who was fisted on stage introduced ex-gay therapy into the Texas Republican Platform.

[Insert snark here.]

The problem with that story is the statement speaks for itself and therefore can go un-annotated.

So that leaves BJ JB Van Hollen, front guitarist for the world's worst Van Halen tribute-band, Attorney General for Wisconsin. In an article written by Andy Towle at the eponymous blog Towleroad, MMF JB Van Hollen is quoted:

I am very pleased that Judge Crabb has followed the lead of courts across the country, including the United States Supreme Court, and fully stayed her ruling. By staying this ruling, she has confirmed that Wisconsin’s law regarding same-sex marriage remains in full force and effect. The state and all of its agencies and subdivisions must follow and enforce Wisconsin’s marriage law.  County clerks do not have authority under Wisconsin law to issue same-sex marriage licenses.  Judge Crabb’s stay makes this abundantly clear.

Please read the rest of the article, as there is a quote by the always calm, the always gracious, the ever fantastic, Senator Tammy Baldwin.

See Double Anal JB is ecstatic, so that's all that matters.

The reason, Judge Crabb isn't being slandered by myself, is because her hands are tied (it is also better to play it safe so that the 7th Circuit has less to criticize her for; acting rashly now could invite unwarranted criticism into her decision in Wolf v. Walker):

After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court.

60 Counties and 555 marriage licenses, in one week. Tell me that people are not hungry for those rights that are fundamental to the human condition. Tell me that is not a cause for celebration.

JB Van Hollen, you sir are a hypocrite, an asshole, and a bigot. You sir are the only one in this ordeal over-joyed by continuing discrimination. You sir are the only one who could have ended this immediately when offered a chance.You sir refused to defend the law offering minor yet fundamental protection to gay couples, because you sir believe it to violate the constitution. Yet you sir continue to defend a unconstitutional ban on marriage, even after it has been demonstrated by a court of law to be unconstitutional (repeatedly.)

Fuck You Sir!

If one couple is denied hospital visitation rights, or has power of attorney stripped away because they're not a real couple, or is denied tax benefits, or has survivorship property rights taken away, that is on you, you fucking piece of shit.

I made this to bring this post back into a lighthearted mood. The really sad thing is I didn't even have to slander him. He kind of did it to himself.


Liam '14

The Dawn

Perhaps there is a little more good news out of the Wisconsin Marriage news.  The price of marriage equality has been high both on the individuals launching  the lawsuits and to the tax payers who are on the hook for defending their States' constitutional bans.

So it is down right pleasant to find a little nugget of extra good news within Wolf v. Walker. In the court case, there appears to be some juicy little dicta:

Because of the uncertainty in the law and because I am deciding the case in plaintiffs' favor on other grounds, I decline to wade into this jurisprudential thicket at this time. However, the court of appeals’ statement that sex and sexual orientation are related provides some support for a view that, like sex discrimination, sexual orientation discrimination should be subjected to heightened scrutiny.

What can I say, I love me some dicta...But let me back up and explain exactly how this can be used for furthering gay rights. Wisconsin has a version of ENDA in place, so it would be little help to gay people to join in to the EEOA. However, the law doesn't provide protections for gender identity.

So when I read this naughty little bit I had to go back and read the section over:

Plaintiffs identify two theories of sex discrimination. The first is straightforward: if each plaintiff was to choose a marriage partner of the opposite-sex, he or she would be permitted to marry in Wisconsin. Therefore, plaintiffs say, it is because of their sex that they cannot marry. Plaintiffs’ second theory is more nuanced and relies on the concept of sex stereotyping. In particular, plaintiffs say that Wisconsin’s ban on marriage between same-sex couples “perpetuates and enforces stereotypes regarding the expected and traditional roles of men and women, namely that men marry and create families with women, and women marry and create families with men.” Plts.’ Br., dkt. #71, at 18...

With respect to plaintiffs’ second theory, there is support in the law for the view that sex stereotyping is a form of sex discrimination. Virginia, 518 U.S. at 541-42 (“State actors controlling gates to opportunity . . . may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.”) (internal quotations omitted); Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matc[h] the stereotypes associated with their group.”). See also Doe by Doe v. City of Belleville, Illinois, 119 F.3d 563, 581 (7th Cir. 1997)(“A woman who is harassed . . . because [she] is perceived as unacceptably ‘masculine’ is harassed ‘because of’ her sex. . . . In the same way, a man who is harassed because . . . he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed ‘because of’his sex.”) (citations omitted). But see Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1068 (7th Cir. 2003) (Posner, J., concurring) (“‘Sex stereotyping’ should not be
regarded as a form of sex discrimination, though it will sometimes . . . be evidence of sex discrimination.”). Some commentators have argued that sexual orientation discrimination should be seen as the ultimate form of sex stereotyping because it is grounded in beliefs about appropriate gender roles, e.g., Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988), but plaintiffs have not cited any courts that have adopted that theory and I am not aware of any.

Plaintiffs’ arguments about sex discrimination are thought-provoking enough to have caught the interest of at least one Supreme Court justice. Oral argument, Hollingsworth v. Perry, No. 12-144, 2013 WL 1212745, at *13 (statement of Kennedy, J.) (“Do you believe [that a ban on same-sex marriage] can be treated as a gender-based classification? It's a difficult question that I've been trying to wrestle with it.”). However, neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has embraced either theory asserted by plaintiffs. With respect to the first theory, the court of appeals assumed in a recent case that a sex-based classification may be permissible if it imposes comparable burdens on both sexes. Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 581 (7th Cir. 2014) (“Sex-differentiated standards consistent with community norms may be permissible to the extent they are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both males and females alike.”). With respect to the second theory, the court has stated that there is “a considerable overlap in the origins of sex discrimination and homophobia,” but the court declined to “go so far” as “to conclude that anti-gay bias should, in fact, be understood as a form of sex discrimination.” Doe, 119 F.3d at 593 n.27. The Supreme Court has not discussed either theory as it relates to sexual orientation.

Because of the uncertainty in the law and because I am deciding the case in plaintiffs’ favor on other grounds, I decline to wade into this jurisprudential thicket at this time. However, the court of appeals’ statement that sex and sexual orientation are related provides some support for a view that, like sex discrimination, sexual orientation discrimination should be subjected to heightened scrutiny.

So perhaps.. I have yet to read any article backing this approach or referencing this paragraph. But.... But.. it is there. 

This is big. Perhaps.


Liam '14

It Goes Darker Still

Dane County, Wisconsin is home to the capital, Madison.  It is also the home to the flagship university for the Wisconsin System. The population of Madison is 233,209, while 42,595 attend the University, 40,000 attend Madison College, and there are 4,454 instructors between both institutions.  Thus 37 percent of the population is tied to higher learning.

So it is of absolutely no surprise that Madison is liberal.  It was also absolutely not a surprise when the Dane County Clerk began issuing marriage licenses to gay couples the moment Wolf v. Walker was released.

In fact the County Clerk made a statement before the ruling saying this was his office's intent.

But let's see how the AG represented the State after the ruling. This is how it went down according to an article written by Judith Davidoff on June 6th for the Isthmus:

In his motion Friday to Crabb, Van Hollen said the fact that marriage licenses have already been issued to same-sex couples in Wisconsin "is precisely the type of confusion and uncertainty that the State Defendants intended to avoid by requesting a motion to stay."

He also said that the "Milwaukee and Dane County clerks' issuance of marriage licenses to same-sex couples this weekend creates the non-uniform result that some same-sex couples can marry and others cannot."

Brilliant argument. So if we take DP  JB's arguement to its logical conclusion, all marriages should be halted.
I'm starting to wonder if JO JB graduated from UW Law, or if he made a diploma out of a cut up Cheerios box and some crayons. You decide.

If the court doesn't issue a stay, it looks like BBW JB will be bringing a motion for injunction to the 7th Circuit, because let's face it, MILF JB is always worried about discrimination.

In case you were curious, the 7th Circuit Court of Appeals falls under Elena Kagen's jurisdiction.

Anyway. I decided to give Wisconsin a new updated flag.

Congratulations to all the citizens of Wisconsin. Love has won.

Liam '14

It Goes Dark

I really wanted to analyze, heh anal, this portion of Wolf v. Walker between whiskey sessions. Good thing I don't write this blog for other people, or I would be in trouble with this post. It's long, it's graphic-less, and it's legal. But I think it is really important to point out this is how the tax dollar of the Wisconsin citizens were wasted by BJ... I mean HJ... sorry I mean A2M... damn-it... I mean AG JB Van Hollen.

I couldn't quickly find the costs for Wisconsin; however, Pennsylvania wasted $588,000 defending its now extinct marriage ban. Good job you "fiscally conservative" assholes, instead of feeding the homeless or educating the children, you gave yourselves a $500,000 moral reach-around. 

I digressed. Here is how Judge Crabb describes the States argumentation:

B. Positive Rights vs. Negative Rights 

What is perhaps defendants’ oddest argument relies on a distinction between what defendants call “positive rights” and “negative rights.” In other words, the Constitution protects the rights of individuals to be free from government interference (“negative rights”),but it does not give them a right to receive government benefits (“positive rights”).

Hey Dipshit, here is the Comity Clause: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." I learnt this in the 8th grade. And when Mr.Comity Clause met Mr. 14th Amendment, they got gay married. They continue to have interstate intercourse to this very day.

Moving on:

Defendants cite cases such as DeShaney v. Winnebago County Dept. of Social Services, 489U.S. 189, 195 (1989), for the proposition that the Constitution “confer[s] no affirmative right to governmental aid.” Thus, defendants say, although the due process clause may protect the right of individuals to engage in certain intimate conduct (a “negative right”), it“does not preclude a state from choosing not to give same-sex couples the positive right to enter the legal status of civil marriage under state law.” Dfts.’ Br., dkt. #102, at 8. 

Defendants’ argument has two problems. First, the Supreme Court has held on numerous occasions that marriage is a fundamental right protected by the Constitution.E.g., Turner v. Safley, 482 U.S. 78, 95 (1987); Cleveland Board of Education v. LaFleur, 414U.S. 632, 639-640 (1974); Loving v. Virginia, 388 U.S. 1, 12 (1967). Thus, even if marriage is a “positive right” as defendants understand that term, marriage stands as an exception to the general rule.

Second, even if I assume that the state would be free to abolish the institution of marriage if it wished, the fact is that Wisconsin obviously has not abolished marriage; rather,it has limited the class of people who are entitled to marry. The question in this case is not whether the state is required to issue marriage licences as a general matter, but whether it may discriminate against same-sex couples in doing so. Even in cases in which an individual does not have a substantive right to a particular benefit or privilege, once the state extends that benefit to some of its citizens, it is not free to deny the benefit to other citizens for any or no reason on the ground that a “positive right” is at issue. In fact, under the equal protection clause, “the right to equal treatment . . . is not co-extensive with any substantive rights to the benefits denied the party discriminated against.” Heckler v. Mathews, 465 U.S.728, 739, 646 (1984). Therefore, “[t]he State may not . . . selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause.”DeShaney, 489 U.S. at 197 n.3. 

That's an incredibly good point. If the State wanted to deny marriage it would have to abolish marriage. In that respect, yes, the State doesn't have to give people the privileges of marriage. At the same time this is in no way germane to the argument, because of the government cannot discriminate.

Defendants fail to distinguish this case from the others in which the Supreme Court considered the constitutionality of laws that denied the right to marry to some class of citizens. Loving, 388 U.S. 1 (interracial marriage); Zablocki v. Redhail, 434 U.S. 374(1978) (marriage of parents who fail to make child support payments); Turner v. Safley, 482U.S. 78 (1987) (marriage of prisoners). Although defendants say that their argument is“consistent” with Loving, Zablocki and Turner because those cases did nothing more than“recognize a negative right,” Dfts.’ Br., dkt. #102, at 10, defendants do not explain why marriage is a “positive right” when the state discriminates on the basis of sexual orientation,but a “negative right” when it discriminates on the basis of race, custody or financial status.Defendants make a related argument that the government should not be required to“officially endorse the intimate and domestic relationships that gay and lesbian persons may choose to enter.” Dfts.’ Br., dkt. #102, at 9. They cite cases in which the Court held that there is no constitutional right to subsidies for having an abortion and that the government is entitled to have a preference for childbirth. Rust v. Sullivan, 500 U.S. 173, 201 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 509 (1989). Along the same lines, defendants argue that they are entitled to have a preference for marriage between opposite sex couples.

Even setting aside the many obvious factual differences between marriage and abortion, the analogy defendants attempt to draw is inapt for three reasons. First, as noted above, the state is already issuing marriage licenses to some citizens. The comparison to abortion would be on point only if, in the cases cited, the state had decided to fund abortions for heterosexual women but not for lesbians. 

Second, abortion cannot be compared to marriage because the government does not have a monopoly on providing abortions. In other words, if the government refuses to use its resources to provide or fund abortions, a woman may seek an abortion somewhere else.In contrast, it is the state and only the state that can issue a marriage license. Thus,defendants’ “preference” for marriage between opposite-sex couples is not simply a denial of a subsidy, it is a denial of the right itself. 

Yeah they went there.We don't have to allow gay marriage because of abortion. Jesus Fuckballs! are you kidding me? This ranks highly on the stupidest shit I have ever read in an opinion. Obviously the opinion isn't stupid, it was the jack-offs defendants that were arguing that point.

This sounds like a politician's argument and pandering to the base, rather than a cogent legal argument.


Liam '14

It's a Pride Day Miracle

Today it's Wisconsin, in the form of Wolf v. Walker.

And this one is especially salacious:

Citing these changing public attitudes, defendants seem to suggest that this case is not necessary because a majority of Wisconsin citizens will soon favor same-sex marriage, if they do not already. Dfts.’ Br., dkt. #102, at 40 (citing article by Nate Silver predicting that 64% of Wisconsinites will favor same-sex marriage by 2020).

Quoting Nate Silver while granting marriage equality... Hot.Obviously I have not thoroughly read this 88 page tome, but there is much more in here. Plus whiskey makes it difficult to focus.

In honor of today's victory I made this map. I think from now on I will update this when the rest of the states fall like dominoes, muahahaha!


Liam '14

456

According to the AP via this ABC News Report, 456 couples were legally married in the 5 counties out of 70 that participated during the last week in Arkansas.[1]  456, holy shit that's a lot of people just sitting around waiting to get married in one state.

Congratulations to all. Congrats to the beautiful who got hitched last Saturday. You looked absolutely amazing for having slept all night in your car. Congrats to the attorneys and the legal staff who made this possible. Congrats to the 5 County Clerks who issued the licences like professionals. 456 couples were granted basic legal benefits that other adult couples are able to enjoy.

Also congrats to the bigots who got a stay put in place. Your pathetically small universe only grew by 456. Congratulations to the 70 County Clerks who stalled long enough not needing to issue marriage licenses to couple who are absolutely desperate. You must feel so big in such a small world and having so much power in your job knowing that you can deny people basic human dignity with a smile.

Congratulations to all 753,770 voters who enacted the constitutional ban that is still in place. You only have to deal with 456 same-sex marriages. Enjoy it while it lasts.

Liam '14


[1] http://abcnews.go.com/US/wireStory/arkansas-ag-seeks-court-stay-gay-marriage-23714855

Heart of Glass Rhymes With... Gov. Beshear

It's Kentucky's turn to make headlines. Although Arkansas surly would beg to differ. 

I was reading a article on Kentucky Governor, Steve Beshear, and his role in defending Kentucky's ban on gay certain marriages.

In an article in The Courier-Journal by Andrew Wolfson published on May 10th, all is explained on what Kentucky has been up to since losing in District Court:

U.S. District Judge John G. Heyburn II in February struck down Kentucky's law and constitutional amendment banning the recognition of same-sex marriages performed in other states, saying Kentucky had offered no rational basis for treating gay and lesbian couples differently.

Attorney General Jack Conway, whose office had been defending the ban, declined to appeal Heyburn's ruling, saying at the time that he thought the ban was unconstitutional. Beshear's office then hired an Ashland law firm to handle the appeal, which was filed Monday at the U.S. 6th Circuit Court of Appeals in Cincinnati.

Go read the full article. Seriously. I will quiz later on the material.

There is defiantly a lesson to be learned for governors, here. When your AG drops a case like this, perhaps you should likewise.By hiring outside legal representation, you are wasting government money that could be spent on education, improving infrastructure, or hell, even dildos for the poor would be a better use of the money.

If Jack Conway is running as a Democrat for Governor and you lose this case, he looks intelligent, a good leader, and fiscally prudent, while your party looks incompetent.... Wait Beshear's a Democrat... ummm. uhhh.... but... but. at least Conway looks good and smart... and at least now perhaps I will look a little less partisan... shit.

To see what Governor Beshear's odds are of success, I took a look at the Brief they filed with the 6th Circuit Court.

What scares me the most is that the Brief for the Defendant Appellant is very well written. The Brief  is grammatically flowing and avoids choppy sentences and general errors. I obviously disagree with the logic and the jurisprudence presented; however, well written briefs have a tendency of succeeding, particularly when they defend the status quo.

But let's take a look at their argumentation:

Kentucky, like 33 other states, has exercised its broad authority to regulate domestic relations by adopting a traditional man-woman definition of marriage.

That is not a definition of marriage. Marriage is defined by the statutes that promulgate the rights and responsibilities of marriage. States define marriage by whether or not they adopt the Communal Property Regime or if they use Common Law Property. Beyond that you are defining who gets married, and a state needs a damn good reason to do that (literally. Abridging the 14th Amendment requires strict scrutiny.)

So what's Kentucky's damn good reason for not recognizing same-sex marriages:

Even if Baker were not preclusive, Plaintiffs’ equal protection claims fail. Same-sex couples are materially different from traditional man-woman couples. Only man-woman couples can naturally procreate. Fostering procreation serves a legitimate economic interest that is rationally related to the traditional man-woman marriage model. Thus, same-sex couples are not similarly situated to man woman couples, and the distinction drawn by Kentucky’s statutes is rationally related to a legitimate interest of Kentucky.

So economic collapse will ensue if Kentucky.. umm.. huh!? Gay people don't stop gaying it up when denied marriage. Yes, men and women make more men and women, and people see that as being somehow good for society. But straight people will continue popping little people out of their baby cannons, even if the gayz are allowed equal benefits. This doesn't even meet rational basis. 

Furthermore the examples used by Kentucky to demonstrate their hypothesis are Japan and Germany, neither of which allow same-sex marriage. So we can't allow gay certain types of marriages, because there are problems in places where those gay certain types of marriages aren't performed. You do realize that's an argument for gay marriage, right? 

But hold up, what's this about Baker v. Nelson:

Additionally, Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by 409 U.S. 810 (1972), affirmatively rejected the notion that state law same-sex marriage prohibitions violate the Equal Protection Clause. Baker remains valid binding precedent upon the lower federal courts.

When nearly every federal jurisdiction in America is hearing the same type of case, perhaps this isn't the best argument. Baker provides no rational as it simply declined Certiorari. So after Perry, courts could adopt the 10th Circuits ruling as a primary persuasive authority. I explained it more in detail on the write up over Kitchen v. Herbert. Baker was over a statutory ban, while Kentucky has a constitutional ban. Thanks bigots! 

Liam '14

The Reader Quiz

By what day must the Plaintiffs file their response to the appeal?

A. May 30th

B. June 9th

C. July 4th

D.Butt-Sex 

The answer is D. Butt-Sex... good job reading the Courier-Journal article.

Apparently there are no Men in Gay Marriages

Thursday the 10th Circuit Court heard the oral argument to Kitchen v. Herbert 2: If You Can't Stand the Heat. Coming this Fall.

Kitchen is the groundbreaking decision out of the District Court of Utah that was the first ruling to overturn a marriage ban after the Windsor and Perry rulings. Yes, Utah.. right? But then again the court does what the constitution wants.

After the Kitchen decision, a tsunami of lower court decision, heretofore known as the Gaydal Wave of 2013, gave deference to the 14th amendment, which of course had previously been turned down by the Burger Court in Nelson v. Baker for "want of a substantial federal question."

The post Perry/Windsor victories cropped up in Utah, New Mexico, Oklahoma, Texas, Michigan Kentucky, Tennessee, and Virginia, while pending cases in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Louisiana, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Puerto Rico, South Carolina, West Virginia, Wyoming, and Wisconsin all look increasingly promising.

When going through all the material to see on a national scale what marriage looks like, I became interested in how the United States got to this point, legally speaking. Before I read Kitchen, I knew the basics of the history. The basic frame work looks like this Loving v. Virginia, Nelson v. Baker, Bowers, Romer, Lawrence v. Texas, Windsor, and Perry. 

In Kitchen there is a great section that summarizes the movement towards equality:

In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow them to marry. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. Id. at 186-87. On appeal, the United States Supreme Court summarily dismissed the case "for want of a substantial federal question." Baker v. Nelson, 409 U.S. 810, 810 (1972).

Utah argues that the Court's summary dismissal in Baker is binding on this court and that the present lawsuit should therefore be dismissed for lack of a substantial federal question. But the Supreme Court has stated that a summary dismissal is not binding "when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975).

Here, several doctrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court's summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to "demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime." 539 U.S. 558, 578 (2003). As discussed below, the Supreme Court's decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage.

The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker "limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage."); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs' equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California's prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.

As discussed above, the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state's ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court "may in the future have to resolve challenges to state marriage definitions affecting same-sex couples." Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest disagreement . . . that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." Id. at 2709 (Scalia, J., dissenting). It is also notable that while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S. Ct. 2652 (2013). Given the Supreme Court's disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial question of federal law.

As a result, Baker v. Nelson is no longer controlling precedent and the court proceeds to address the merits of the question presented here.

The Burger Court's denial of Certiorari in Baker v. Nelson had persistent consequences for the marriage equality movement. No court could accept a 14th Amendment argument except the Supreme Court. The Supreme Court would then have no lower court decisions to argue over. Essentially until laws fundamentally changed, any decision would have had to been de novo. 

The legal shift happened, incidentally after 3 events occurred:

1. The passage of the Defense of Marriage Act in 1996 which were codified under 28 U.S.C. § 1738C and 1 U.S.C. § 7. Among other things, it allowed states to not recognize Gay some marriages. It also forbade the Federal Government from recognizing Gay some marriages.

2. State Constitutional Bans. Under the logic of Baker, the issue at hand applied to statutory bans. So a boost to the advancement of marriage equality came from those who exploited discrimination for political gain. The movement to enact state constitutional bans against same-sex marriage began in 1998 with Alaska and Hawaii amending their constitutions to prohibit gays from  getting all gay with each other, am I right fellas?  

3. Marriage equality in the various states. People were married in one state and later moved to another. The notions of full faith and credit were challenged. Furthermore marriages were not equal at the federal level, due to DOMA.

By the time the courts had reached the Perry/Windsor Era, the legal landscape of America look like the following:

Maximum States Constitutional Bans: 30
States with Marriage Equality at the Time of Perry/Windsor: 9
Maximum States to Ever Have Marriage-Lite: 16 + DC

The legal setting was in place to overturn the Baker v. Nelson precedent.

Which brings me to the oral argument for Kitchen.

Here is copy of the oral argument from the April 10th, 2014 Kitchen v. Herbert hearing. It is three straight white dudes discussing my rights as an individual, so what could be more entertaining and in no way frustratingly patronizing.

The audio file has an issue with the left audio feed, so if it sounds gargled, open your equalizer and push the feed to your right output.

A few quick comments:

What is marriage? Apparently only something that a state has one hundred percent control over (because that's what I concluded from reading Loving v. Virginia.)

According to the defendant, it's better to have all of your rights taken away than to be a second class citizen... great argument.

Why the fuck did the defendants just bring up Maggie Gallagher? Seriously. She is a pointless nobody, with zero credibility. She has no higher degree, no JD, no Phd in psychology, and no expertise. I mean for fuck-sake, why didn't they just cite me or even my mom, or fuck it why not my Westie, who can put together an argument that is more coherent and more germane to the topic than Gallagher.  What a bunch of assholes. fucking fuck fuck. I mean seriously, I am glad this douchebag quoted her, because it is on tape, and he will go down in history as the small-minded bigot who quoted Gallagher and then got his ass handed to him in court and everyone in the world pointed and laughed at his tiny dick.

"[Gay marriage] is too new" to have data on societal effects. And so it will be if we never allow gay marriage.

"The disappearance of the dad." We cannot allow gay marriage because the children won't have a dad.... right. Also did he just try to equate gay couples to single parents?

"'Traditional Marriage'" Yes nice 200 year old tradition in a 400,000 year old species. If I hear traditional marriage one more time, I am going to yak.

DOMA was about states right to define marriage, that does not exclude the ability of the Federal constitution to enforce equal protection. It is not that hard to understand. We do not have any laws prohibiting poor people from getting married. Or ex-convicts. Or people named Trent. All of whom probably should be suspect parents/spouses before gay people.

Why don't conservatives get that gay people can have kids. I don't, but others do.

Why does it always come down to polygamy? A court couldn't simply allow polygamy. The polygamous marriage system wouldn't function without additional legislation to regulate how it would function. Most states have a system where each spouse owns half of the property of the marriage. How would that work in a polygamous system? Answer it wouldn't. Polygamy literally changes the definition of marriage, not who can marry.

So did Kitchen et al sue the right people?


Liam '14

Last Year Today...

On March 27, 2013 the United States Supreme Court heard the oral arguments for United States v. Windsor which went on to strike down portions of the Defense of Marriage Act. So today, in honor of precedent I am celebrating (on a work day. Sacre tabarnak!) with a quick refresher of the details.

Ironically, Scalia provided the "so called Homosexual Agenda" (dun-duh dah!) a pathway for future judicial victories by writing dicta in his dissent:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "`bare ... desire to harm'" couples in same-sex marriages. Supra, at 2691. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 2694

Thanks! I'm guessing Scalia popped an anger boner when he saw his quote magically appear in Kitchen v. Herbert:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law. 

Of course Utah wasn't the only jurisdiction to recognize marriage equality since last year.

Marriage After Windsor

I'm out of time. So just imagine that there is something more clever in the map... like sloppy gay sex scenes superimposed in the background.

Since Windsor, there have been legislative victories in the following States:

Rhode Island

Delaware

Minnesota

New Jersey

Illinois
Hawaii

More importantly court victories in these States:

California

Utah

New Mexico

Oklahoma 

Texas
Virginia

Kentucky

Michigan

And more to come...  But as for me, it's now time for beer then bed.

Liam '14