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