Just an Aside

I have been thinking about this, since I heard the Oral Arguments for Obergefell v. Hodges.

Solicitor Bursch for the Plaintiffs argued about 9 times that the purpose of marriage is to link biological children with their biological parents. I find this to be a particularly specious claim, especially when you examine the historical purpose of marriage (or at the very least a purpose.)

A large portion of marriage that is quickly evaporating is legal concept of the "presumption of legitimacy." To a degree anyway, I mean, it isn't totally disappearing.

Let me back up. Black's Law defines presumption of legitimacy as "the presumption that the husband of a woman who gives birth is the father of the child." In, what I am going to pull out of my ass and say, most cases there is no infidelity in a marriage, so the child's paternity is not in question.

Prior to the advent of modern DNA testing (1983), there was no real way of determining who's the father. Thus marriage. If your wife gave birth, it's yours... Unless you were like my uncle and snipped and then two years later miraculously had another child, but that's another story.

In part marriage links children to their parents, and in may cases that is exactly what gay people want to join in on.

It also highlights that marriage is human and thus constantly evolving to adapt to our ever emerging necessities.


Liam '15

King v. Burwell

This post has been quite delayed. Around December of last year, I read the question put forward to the Supreme Court in King v. Burwell, and I was slightly perplexed as to why (besides for the obvious politics of the ACA) this case was granted certiorari.

On March 4, 2015 the Oral Arguments were made. Without going too deep into it, March was a busy month for me personally, and honestly I missed the whole proceedings.

The main reason I am writing this article now is that my interest was peeked, when I heard speculation that Chief Justice Roberts may either concur or agree with a majority in Obergefell v. Hodges to buy cover for ruling against the Government in King v. Burwell.

I do not like to tea read, particularly when it comes to the Supreme Court. After listening to quite a few oral arguments, I find speculation to be mostly pointless. That is not to say that oral arguments are pointless to listen to.

The Justices are not advocates; thus it is often difficult to ascertain how they will rule based off of the questions they ask. For example some of the most difficult question during the oral arguments for the Plaintiffs in Obergefell came from Justice Breyer, who in all likelihood will rule in favor of the plaintiffs.

Point One

The crux of  case lies with the reading of sections 1311 and 1321 of the ACA. While I understand that I am typically biased towards Justice Breyer, I cannot find an agreement from the Plaintiffs that satisfies his central point:

"If you're going to elaborate on that, I would appreciate your ­­ in your elaboration, I've read that, and this statute is like the tax code more than it's like the Constitution. There are defined terms, and the words you just used concern a defined term.  As I read the definition, there's a section, Definitions, and it says, quote, The term "Exchange" means, quote, an exchange established under 1311.  And 1311 says, An Exchange shall be a government agency, et cetera, that is established by a State.  Those are the definitions.  So then you look to 1321. And 1321 says, if a State does not set up that Exchange, then the Federal, quote, secretary shall establish and operate such Exchange.  So it says, "The Secretary is to establish and operate such Exchange," the only kind of Exchange to which the Act refers, which is an ­­ quote, "an Exchange established by a State under 1311." That's the definition.  So the statute tells the Secretary, set up such Exchange, namely, a 1311 State Exchange.... and there's nothing else in this statute....so that's throughout what they're talking about.  So what's the problem?"

After quite a long hypothetical from Justice Kagan, which very bluntly explains what a substitution is, Justice Breyer and the attorney for the Plaintiff get into a bit of a discussion on epistemology:

Mr. Carvin:  We implore you to examine these words in the context of the Act as a whole because our argument becomes stronger for five reasons.  To respond to Justice Breyer's point, he says such Exchange connotes that it's the same person doing it. But look at the provision on territorial Exchanges.  It says, territories can establish such Exchanges and then it says, "and shall be treated as a State."  So-- so-- 

Justice Breyer:  Yes, it does.  But you say connote.  No, it's not a question of connotation; it is a question of denotation.  Now what does that mean?  It means that the Federal government, the Secretary, is establishing a thing for the State.  And what is the thing? The thing that it is establishing for the State is defined as an Exchange established by the State. 

Mr. Carvin:  To ­-- 

Justice Breyer:   Now, that person from Mars, who's literal, which I usually am not, but a literalist, I think would have to read it that way.  But if you-- if you're not a literalist, well, at least you could read it that way.  Now you want to go into the context ­­ if you want to go into the context, at that point it seems to me your argument really is weaker.

Based off of Justice Breyer's statement it would appear that the Government's position is support by a literalist's interpretation, which is bad for the Plaintiff. Once again this was my impression before hearing the Oral Arguments.

Point B

When it comes to what Chief Justice Roberts and Justice Kennedy said during the proceedings, it was fairly brief.  Neither asked that many questions.  Justice Kennedy asked more questions, but due to how he ruled in the previous decision, it will be interesting to see how he will rule in this case.

When discussing the Plaintiffs position Justice Kennedy raises a very interesting conclusion for the Plaintiffs reading of  the Statute:

"Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral.  We'll have people pay mandated taxes which will not get any credit on ­­ on the subsidies.  The cost of insurance will be sky­high, but this is not coercion.  It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument."

Once again I do not do tea leaf readings, but based on this quote, if Justice Kennedy were to accept the Plaintiffs argument, then he would have to rule that the Federal Exchanges are unconstitutional as promulgated.

And as with Bond v. United States, 572 U.S. (2014) in ambiguity, the Court must read a statute in a way where it does not impinge on the basic Federal-­State relationship.

When it comes to Chief Justice Roberts, once again, besides for procedural issues he was mostly silent.  Perhaps the most interesting question he raised was "If you're right ­­if you're right about Chevron, that would indicate that a subsequent administration could change that interpretation?"

In other words, if the Court does not agree with Justice Breyer, in that the governments reading is not based on ambiguity, and agrees with with government because of the statute being ambiguous, the next administration could take away healthcare for millions of Americans.

Point III

This section actually agrees in part with something Justice Scalia said. Quelle horreur, I know! Justice Scalia raise a very good point about the whole situation:

"What about ­­ what about Congress?  You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.  I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision?  Congress adjusts, enacts a statute that ­­ that takes care of the problem.  It happens all the time.  Why is that not going to happen here?"

In this context, Justice Scalia is referring to a circumstance where the Court rules in favor of the Plaintiff. but it also begs the why hasn't Congress clarified the situation. Well, other than the fact that the lower courts have ruled in favor of the Government. Congress could easily have fix this problem and made this case moot and also secured health care for 8-9 million Americans.

It's the legislature's job to fix legislation when it is broken or too unclear (when it's beyond Chevron Deference.)  This is a similar argument to when a statute is declared unconstitutional. It is up to the legislature to strike it from the books. It's why Texas still has anti-sodomy laws on their books. It's also the reason why the Voting Rights Act remains disassembled after Shelby County.

It drives me crazy when these situations arise, because they are often times so easy to fix. And yet they seem to never get done.


Liam '15

Not Even Wrong

On Friday morning instead of work (shh), I read this article that was linked to SCOTUSblog:

Correcting Six Mistakes from the Same-Sex Marriage Oral Arguments Last Week by  James Phillips at the Witherspoon Institute.

I thought it was going to be interesting and soon discovered that it was in fact interesting, but for the wrong reasons.

To get the discussion going in the right direction I want to lay out some terms. Before I dissect this article, I want to quote Black's Law Dictionary on marriage: "The essentials of a valid marriage are (1) parties legally capable of contracting marriage, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law."


Section 1. "Error Number One: Massachusetts Marriage Rates Have Stayed the Same"

Alright, let's do this. Whatcha got:

"During the questioning of Michigan’s attorney, John Bursch, Justice Sotomayor commented that 'In Massachusetts, we’ve got data that it’s—the rates have remained constant since they changed their laws...' Justice Sotomayor is only correct if Massachusetts includes same-sex marriages in that number."

Sorry that's not an error. What she said was factual.

"The marriage scholars were also able to obtain data on opposite-sex marriage rates from three other states that have legalized same-sex marriage, and they likewise have seen declines: Vermont (-5.1 percent), Connecticut (-7.3 percent), and Iowa (-9.2 percent)."

Over the same period of time based on CDC figures the average change in marriage rate for states that did not allow same-sex marriage is -13.07 percent. Even assuming all of these numbers are correct, the declining marriage rate is still slower in the pro-gay states. Has same-sex marriage led to the appreciation of marriage among heterosexuals? No, there is no mechanism for this to occur. If you want to understand long term marriage trends look to anthropology and economics for the answer.

Call me old fashioned, but I believe that at least your first point should be valid, particularly when you are calling people out for being "wrong."


Section 2. "Error Number Two: Because Some Men Leave Their Wives and Children, Marriage Does Not Help Keep Fathers Around"

True, Justice Sotomayor makes a logical fallacy; however a logical fallacy does not make an assertion incorrect. For example the non-sequitur statement "if there are 2 apples and 2 oranges, and ass-fucking is fun, then there are 4 pieces of fruit" does not discount the truth of 2+2=4.

My point being prove the correlation or shut the fuck up.It doesn't matter that Justice Sotomayor made a logical fallacy, since the base statement wasn't proven to begin with.

Further, this section is pointless as it has little bearing on anything. It would possibly have meaning if the first section were correct, because if same-sex marriage caused a decrease in straight marriage, and marriage "keeps fathers around"... I would dig up some facts to find out the truth of the assertion made by Michigan, but it is absolutely pointless. So, I'm moving on.


Section 3."Error Number Three: The Purpose of States’ Recognizing and Regulating Marriage is to Bestow Dignity on Couples"

I actually agree with this entire section:

"Justice Kennedy expressed surprise when Mr. Bursch argued that the states are not in the marriage business to bestow dignity. Justice Kennedy responded: 'I don’t understand this is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. It’s dignity bestowing, and these parties say they want to have that—that same ennoblement. Or am I missing your point?'Yes, Justice Kennedy was missing the point. He was confusing the reason that a couple may desire to be married with the reason that a state would want to recognize and regulate marriage. Those are distinct.

The funny thing is that this bit undercuts pretty much every argument against same-sex marriage.If marriage doesn't bestow dignity, then it's a bundle of rights and obligations.

And what constitutional basis would the government have to deny a class of people rights and obligations?

See where I'm going with this. Good. If marriage bestows dignity the government cannot take it away, and if it is an institution that bestows rights and obligations the government cannot take it away.


Section 4."Error Number Four: The Only Harm to Legalizing Same-Sex Marriage Is Making Marriage More Adult-Centered"

Another laughable section. Even the title is funny as no one argued this.

The rest of the section is conservative butthurt over changing social mores. To paraphrase Heraclitus, go suck a dick change is the only constant.

Get fucking over it.

Also, way to be total fucking dick bags towards adoption.

And thirdly, no-fault divorce is a problem? Nice can o' worms ya got there.

PS. This is section is largely opinion... not really a subject to error.


Section 5. "Error Number Five: There Is a Parallel between Brown/Loving and Lawrence/Obergefell"

Yes, yes there is a definite parallel between civil rights cases.

"At the time of Loving, state prohibitions on inter-racial marriages had been in existence in only some of the states, and then at most for about 300 years if we go back to colonial times in Virginia and Maryland. But man-woman marriage has been the law in every state since the birth of the nation—and in every Western nation for millennia."

Umm... so gays have it had it historically worse and this proves that it's not discrimination? I'm not following your point. Not really even a point I guess. Further more the parallel was established and the article only affirms it.


Section 6. "Error Number Six: Age Restrictions on Marriage Are Equivalent to the Definitional Element of One Man and One Woman"

This is another dumb one to argue. Age restrictions are constitutional; by disassociating age restriction from the definition you're only hurting your position. But that's just the title.

Let's look further:

"Several of the justices questioned whether there was a difference between recognizing exceptions to age restrictions and recognizing same-sex marriages.In short: yes, there is. Not all exceptions are equal. Age has never been a part of the definition of marriage."

Umm... consent isn't apart of the definition of marriage... funny. It's like a someone said something contradictory earlier... like in the actual definition of marriage...

The main reason age is a restriction to marriage is because of consent. The concept of consent makes the restriction rational.

****

To sum up the article, ignore every economic reason for a falling rate of marriage to pin it on Griswald, Loving, Roe California adopting No-Fault Divorce, queers getting hitched. It also unquestioningly assumes that a declining marriage rate is bad. It ignores human history and the constant flux of morality.In short the article is sloppy, ignorant, and fails to make a coherent point.


Ok I'm bored now.

Check out the other article linked to SCOTUSblog, which is Lisa Keen's article on Obergefell v. Hodges.


Laim '15

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

Oops, Wrong Side

Sometimes I hear someone, and my mind reels at the lack of self-awareness. Often times it comes in the form of cognitive dissonance.

Case in point Mat Staver.

As shown in this video posted to YouTube via Right Wing Watch, on Saturday April 25, 2015 Liberty Council founder Mat Staver addressed a march organized by NOM:

As someone who's argued before the United States Supreme Court, I certainly have respect for this court, but I have no respect and cannot respect a lawless decision. This court has not always been right on the issue of marriage. 

In the 1800s it issued the infamous Dred Scott decision, and Justice Taney said, “sorry Dred, no rights for you here at this high court,” because they said blacks were inferior human beings.

How racist and bigoted was that? How contrary to the natural law of God is that decision?

It is no decision worth respecting today, and It was no decision worth respecting then.

In 1927 the famous Oliver Wendell Holmes wrote the infamous words, “three generations of imbeciles are enough.” Saying to Carrie Buck, the Commonwealth Virginia can forcibly sterilize you to get rid of your population, because you have low IQ.

That was a racist bigoted decision flies in the face of the dignity of every person created in the image of God.

No one will defend it now and no one should have defended then.

I say now as we are standing on the precipice this major decision before the United States Supreme Court, these leaders that came together in this marriage pledge, that I hope you sign on it at defendmarriage.org are saying this, “Supreme Court of the United States with all due respect, we warn you, do not cross this line.”

As much as I am an attorney, and I respect the rule of law, I also respect a higher law. And when an earthly law collides with a higher law, we have no choice to obey higher law. We cannot comply Caesar's demands that are in direct conflict with a higher law, and that's what the Doctor Martin Luther King wrote in a letter from a Birmingham jail. There are two kinds of laws just and unjust. You have to obey the just laws, but the unjust laws are no laws at all, and we cannot obey those.

Marriage is the union of a man and a woman. As a policy matter any other union says that God’s design is flawed. As a policy matter any other unions say that boys don't need fathers and girls don't need mothers, and we know that God’s creation the divine architect that infused into the natural created order, knows what's best for the family. Children need mothers and fathers.

This United States Supreme Court, nor any governmental entity, does not have the authority to redefine God’s natural created order of marriage.

Mat, honey, the connection between Dred Scott, Buck v. Bell, and Baker v. Nelson was an unjust denial of the Due Process Clause. Or in other words, Americans are afforded the rights to life, liberty, and property.

In fact, the denial of the 5th Amendment in Dred Scott was a major point for the adoption of the 14th Amendment. It ensured that all people are afforded due process protections by both the States as well as the Federal Government.

I know in 2014 your Liberty University had a first time bar passer rate of 50% in Virginia: so I have a feeling you might not be teaching this, but based on the concept of substantive due process the right to marry is a condition of life, liberty, and property as enumerated in Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley.

In your own analogy, you are on the wrong side of history. You're not arguing for Dred Scott or Carrie Buck. You're on the side that wants to deny liberty and substantive due process. But thanks for playing and proving why your school is garbage.

If I were a betting man, I would be willing to bet that Mat knows that he is on the wrong side of history, as much of his speech reads nearly perfectly as a pro-LGBT. But quite frankly in the end I don't care.

I am curious though how Mat is going to perform civil disobedience in regards to same-sex marriage.
For civil disobedience, which MLK, Jr. prescribed, the government has to be doing something and your non-compliance is therefore disruptive. For example not paying your taxes. Or sit-ins in Government or public locations.

The only thing I can think that vaguely would qualify, is that Mat won't get married to a dude. Not much of protest there as not getting married affects nothing.

Or perhaps he will get a boyfriend and then won't get married as some sort of fucked-up, bizarro, psycho-sexual protest that only Mat Staver knows about or would makes sense to.

I have heard of people doing weirder things.

The Loophole by Garfunkel and Oates

It's either that or impotent rage. And impotent rage is never attractive.

The very last point I want to touch on is when Mat says, "This United States Supreme Court, nor any governmental entity, does not have the authority to redefine God’s natural created order of marriage."

You do realize that gay people exist, right? And that many of us have kids? And that would be a part of god's order, right? I'm not saying existence is right or wrong, but I am saying that existence is nature. If god didn't want gay people, then why do we exist.

Where do they get off speaking for god. That's pretty fucking arrogant.


Liam '15