Lawyers all around the country are drooling like a bulldog eying off a cat with no legs at the thought of yet another blistering Scalia dissent on gay rights. So much fun.
As I see it, the Supreme Court should go 6-3 for the right to marry, Kennedy delivering the majority judgment. Marriage fundamental right, laws fail at any level of scrutiny because duh, laws invalid under the 14th amendment, compulsory fuck-you Scalia citation, rousing ending, bing, bang, boom. Where’s the cake and champagne?
I just can’t see Kennedy voting against or going for weasel words to limit the effect of the judgment. The steady advancement of gay rights in the Supreme Court most ensures Kennedy’s place in the history books and (more importantly) the law texts. Lawyers do love to have their name on a precedent that’s going to be cited a hundred years from now.
This is not in any way to suggest mercenary intent. Kennedy’s judgments in Romer, Lawrence and Windsor clearly indicate that gay rights are something he genuinely and passionately supports, and has patiently and firmly worked to expand.
See Romer in 1996:
The primary rationale the State [of Colorado] offers for Amendment 2 [prohibiting any laws to protect homosexuals against discrimination] is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . .” Civil Rights Cases, 109 U.S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.
See Lawrence in 2003:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
See Windsor in 2013:
DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
As has been noted in several recent District Court judgments which I seem to recall reading or at least dreaming up, if you stir up the “State” and “federal” references in that paragraph and season it with a bit of Loving, you’ve basically written the final paragraph of Kennedy’s upcoming judgment in Obergefell v Hodges et al, et al for him.
It boggles belief that Kennedy would sully his legal reputation by overlooking or distinguishing his own judgments in Romer, Lawrence and Windsor in order to decide that States can go around to gays’ houses and poke them in the eyes with a stick if they ask to get married, not least due to the threat of Ruth Bader Ginsburg calling him a softcock in the lunch room for the rest of his career, and generations of law students thinking he’s a bit of a dick. I’m looking at you, Byron White.
I think Roberts will vote with the majority, because he is a man who always has both eyes, two soft hands and a buffing rag on his reputation. Barring accidents or Tony Scalia going berserko with an icepick, Roberts has another twenty or thirty years as Chief Justice. He knows that freedom to marry is coming, sooner or later, and he’s not going to miss his share of Kennedy’s reflected glory or allow the Roberts Court to hand down a Plessy v. Fergusonesque fuck-you-with-our-state’s-rights to the faggots, which the same Roberts Court is then going to have to overturn ten years from now, when gay marriage is legal everywhere but one or two bumblefuck places like Kentucky and New Hampshire, in a 7-2 decision written by Justice Ginsburg (Chief Justice Roberts and Justice Scalia dissenting) which consists only of the words “Motion granted because Anthony Kennedy and John Roberts are, and were, softcocks.” How embarrassment. How humiliation.
Besides, Roberts has more important matters to devote his attention to like gutting Obamacare and giving corporations the right to vote and bear children.
I’d love to see an RBG concurring judgment consisting of just a ten minute video loop of her reading out the best bits of Scalia’s dissents in Lawrence and Windsor and laughing her arse off, but I suspect she would not want to step on Kennedy’s moment of glory in any way, because RBG is class.
Scalia, to pick a counter example entirely at random, is not class, being, as he is, an arsehole. Scalia is going to be livid. He will rant. He will rave. He will pontificate and huff and puff and slaver about the coming dark days of people marrying hamsters and genderless bathrooms*, until his head explodes. It will be glorious, and a little bit like this:
* I’m not sure how one goes about marrying a genderless bathroom, or indeed any kind of room, but I’d give you fair odds that Brian Brown or Mags Gallagher will be railing against it sometime soon.
Hello kiddies. It’s a scorcher down here today, and that means margaritas. Tonight, I’m off to see Chekhov. In celebration, therefore, music!
Peter Hartcher in the Sydney Morning Herald has a very good article on yesterday’s reaction in Australia to the cafe siege.
When I chanced to walk through Martin Place a little after 11am on Monday, I saw the police clustered closely around the Lindt Cafe. I saw the police cordon as I stood among some hundreds of onlookers.
The police evidently had the situation in hand. The crowd was curious, but might as well have been watching a busker for all the tension in the air. Some onlookers snapped photos. Some left as others arrived. The scene was perfectly calm.
It was only when I turned on the TV an hour or so later that I realised the magnitude of our dimwittedness. We were supposed to be terrified.
The Prime Minister led in shaping our responses. He called a press conference but had no information to offer on the incident except that he had held a meeting to discuss it. He took only one question, to explain that he had no details but that the NSW police did.
“We don’t yet know the motivation of the perpetrator,” he said, then freely speculated that he was politically motivated. It was “very disturbing”.
Indeed, the police operation seemed to me (from my vantage point locked in a building five blocks away) to be exemplary – buildings evacuated, police lines erected, negotiators brought in, calm officers on the television (notably, the exceptional Deputy Commissioner Catherine Burn) telling everyone to stay calm and get on with their day, a “steady as she goes, freeing the hostages is our number one priority” press conference to end the day, all with remarkable efficiency.
Even the media did a decent job, even if, by mid afternoon, they had run out of people who might have been in Martin Place if they hadn’t missed their bus to interview, and had moved on to showing news stories about who was reporting what. By 7pm, when I got home, they had all been talking for so long that speech had descended into verbal soup. I swear I heard one newsreader (I’m looking at you ABC24) speak a single sentence that managed to mention international news coverage of the incident, the plight of the hostages, hashtags trending on the internet, ISIS flags, how muslims were mostly nice people who thought terrorism was bad, and Barack Obama’s senior security advisor in no more than thirty words. It was very impressive, but terrifying, so I turned it off and watched Martin and Saga find more dead bodies instead.
By tomorrow morning, most of the media will have started removing their pants in order to inspect each other’s fundaments. Yes, sometime tomorrow some dickhead will say something stupid about jihad, or an even bigger (or perhaps just younger) dickhead will make a big man of himself by making fun of some woman threatening society by doing her shopping in a hijab, and a feeding frenzy will begin. There will be hashtags and counterhashtags and burka videos, for and against. Someone will let Jackie Lambie out of whatever box they had her stashed in today and she will say something dumb and racist. Politicians will have serious press conferences to tell us that terrorism is a terrible thing, and how the answer is another filter or letting Scott Morrison poke brown people with a pointy stick.
The idiot with a gun will get, as Mr Hartcher describes it, the overreaction that is the measure of his success.
Hopefully, God (or more likely the skills of those police negotiators) willing, somewhere amongst all that lot, the hostages will walk out to safety.
Whatever happens, the thing that stands out for me is how today was, as Mr.Trowel described it, “quiet and much like any other day” in my office and, I suspect, thousands of other offices and shops throughout Sydney.
After the flurry of texts and calls to friends and loved one had died away, everyone got on with their day. People wandered into to other people’s offices, just to check they were ok, or took breaks together to find out what was happening. Coffee runs were made. The Partners’ lunch stretched to “everyone grab a plate and one piece of bread only”. I had meetings with a couple of very clever young women, and at about 3pm, when the building reopened, most people quietly went home.
I’m not suggesting that being calm in a serious situation is some special Australian trait.
Whether it’s planes flying into buildings, or tsunamis, or bombs on trains and buses, or just a broken gas main, people, on the whole, just buckle down and get on with it, save what they can, offer what comfort they can, and go home for a drink.
Tomorrow, come good or bad news, the media and political circus begins in earnest.
If only we could just leave them to it – get on with our day, be nice to each other, comfort those who need comfort, and go home for a drink instead.
It has been a while. I have no real explanation. Let’s put it down to ennui (a rationalisation laden with enough cheese-eating surrender-monkey bullshit that we can just pass on and get on with the motley).
When I last spoke to you, we had a Democrat-controlled Senate, we weren’t at war with anyone, the economy was on its way up, and the newspapers hadn’t carried reports of the murder and/or torture of black or brown people by white authority figures for at least a week.
So that’s all gone to shit, and I suspect I’ve built up enough anger to be entertaining again.
What’s your excuse?
Actually, fuck that. I don’t give a shit, because you lot have apparently managed to entirely fuck up the country in my absence.
Fuck you all, you namby-pamby lefty fuckers. Read the rest of this entry »
I live. Apparently.
What did I miss?
Just over a month ago, I posted about Judge Robert Shelby’s erudite decision in Kitchen v Herbert which overturned Utah’s constitutional ban on same-sex marriages. In that post, I mentioned that the same sex couples, in their stay submissions, provided a listing of 25 current state and federal lawsuits, covering fifteen states, challenging state laws banning same sex marriage.
Amongst them were the cases of Bourke v. Beshear in Kentucky and Bostic v. McDonnell in Virginia, both of which have been decided in the last two days.
In Kentucky on February 12, Judge John G. Heyburn of the US District Court Western District of Kentucky (appointed by Dubya, for those who are keeping score) found (pdf) that the provisions of the Kentucky constitution and statute which which provided that the state could not, and need not, recognise same sex marriages solemnised outside Kentucky violated the Fourteenth Amendment, and were therefore invalid.
Mark Joseph Stern at Slate notes that Judge Heyburn’s decision is similar in many ways to Shelby’s, not least because Heyburn gets a good’un or two in on Tony Scalia, the betoqued-for-pomp-and-circuses Cassandra of the Supreme Court.
Heyburn (on page 13, if you want to revel) mimics Scalia’s schtick in Windsor of rewriting Tony Kennedy’s majority judgment to show how, with a few proper nouns and adjectives swapped in for others, Windsor is clearly authority for the proposition that same sex marriage bans of all kinds demean gay people, and that their only basis is that some random goatherder thought his god wanted to have a chat about the evils of shrimp, boils and bumsex.
On the next page, Heyburn cites Scalia’s comment in Lawrence that:
“‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”
It’s all in good fun, at least until Fat Tony gets his anger on and ruptures a tube.
Stern says that, aside from giving Tony the finger, Heyburn’s decision is “fairly predictable” and “follows the emerging pattern of these kinds of rulings: He wavers on the scrutiny question, finds that the law was driven by anti-gay animus, and strikes it on Equal Protection grounds.”
This does a considerable disservice to Heyburn, whose decision is elegantly argued, compassionate and forthright.
In essence he says that the same sex marriage bans in the probably fail heightened scrutiny, and might perhaps be driven by animus against gay and lesbian people, but neither of those things actually matter. They don’t matter because the laws also fail the much less onerous test of rational scrutiny – that is, that they must be rationally related to a legitimate government purpose – by reason of, and here’s the tricky bit, not actually being rational or in any way related to a legitimate government purpose.
Judge Heyburn, one might think, is quite mindful that there is every chance Justice Kennedy will read his decision. He carefully outlines each of Kennedy’s judgments which advanced rights for non-heterosexuals, Kennedy’s arguments as they build to their logical conclusion – Kennedy writing a majority judgment overturning gay marriage bans nationwide.
So, as one can readily see, judicial thinking on this issue has evolved ever so slowly. That is because courts [sic] usually answer only the questions that come before it. Judge Oliver Wendell Holmes aptly described this process: “[J]udges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” S. Pac. Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting). In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially, as Holmes said it should, establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.
Before that fine ending, however, Heyburn does something even more important, as noted by Lyle Denniston at SCOTUSblog:
A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter. That section of the ruling read very much like a basic civics lesson about the way that the Constitution’s protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.
The whole decision (pdf) is well worth a read, but pages 18 to 23 would arm anyone to politely and calmly argue down even the most determined godbotherer.
Hmmm. Crikey it’s a dry old read. When it’s not being purple, that is. Don’t get me wrong, it’s an impeccable decision, concisely (if such a term can be applied to any 41 page document) rebutting every possible argument against same sex marriage.
The lovely bit though? The bit that makes me think that Judge Arenda Wright Allen is my kind of gal?
Her decision opens with this.
Cut. Print. This baby is done.
It seems like we haven’t had a book post in a while, dears. I certainly have a backlog of books to tell you about. First, however, some music to get you in the mood. How about the wonderful Wasting My Young Years, from London Grammar…
or perhaps TR|PW|RE, a lovely swirling, bouncy track by commenter nastybrutishntall.
I’ve just finished The Days of Anna Madrigal, by Armistead Maupin. This is the ninth book in Maupin’s Tales of the City series. If you haven’t had the pleasure of Mr Maupin’s tales, then this isn’t the book for you, and you should immediately hie yourself to a bookstore and begin at the beginning, where all good stories start, back with Mouse and Brian in the popper and dope-smoke fug of the sexy seventies. If you have been following along then, happily, The Days of Anna Madrigal is a triumph. Anna may be 92, but she still likes a toke and a dance (honestly, who thinks of these things?), and her swansong is a gentle, bittersweet trip into the past and present for Maupin’s finest creation.
I’m making my way through Greg Ross’ Futility Closet. Subtitled “An Idler’s Miscellany of Compendious Amusements”, this book is a joy, not least for its … well, compendious (and fully hyperlinked) index, a masterpiece of the form which contains such gems as:
authoring papers, 67
befriending racehorses, 74
besetting airships, 19
denoting verbs, 140
governing Bombay, 187
piloting bowls, 216 …
Also well worth your time are Alastair Reynolds’ Blue Remembered Earth, a sprawling, operatic romp that rockets all over our solar system and beyond, and his Doctor Who novel, Harvest of Time, which brings Roger Delgado’s Master thrillingly back to life while (importantly) making sure the character is still just a tiny little bit crap.
If you like police procedurals and have a taste for ghosts and gods and monsters, then have a look at Ben Aaronovich’s Rivers of London series. Aaronovich’s London is perfectly evoked, and his characters get down and very dirty in the tunnels that lie beneath that stinking shithole of a city. (Thanks Tom!)
If tentacles and forebodings of doom are more your thing, then I heartily recommend Innsmouth Magazine – a thrice yearly collection of Lovecraftian tales.
TV-wise, I confess that I have been making heavy use of my AppleTV to keep myself sane until Game of Thrones and Broadchurch return, mainly because Australian television is far worse than you can imagine – a heady mishmash of bogans cooking, yellow people having their luggage searched, footballers in blackface, and current affairs shows that make Murdering Joe look like Edward R. Murrow.
I particularly enjoyed Utopia. Starring, amongst others, James Fox, Stephen Rea and the luscious Geraldine James, Utopia tells the story of a group of geeks who discover a global conspiracy hidden in the pages of a lost graphic novel. It’s incredibly, graphically violent, and beautifully shot in vibrant reds and greens. Best of all, it pays off every story thread in six taut, tight episodes. See it before some American remakes it and sucks all the pleasure out of it.
I love a bit of murder and a good frocking, and so I have been making my way through both Miss Fisher’s Murder Mysteries and Ripper Street.
The first is an adaptation of Kerry Greenwood’s Phryne Fisher mysteries that lovingly recreates Melbourne between the World Wars, with lashings and lashings of blood, handsome policemen, shameless (but tastefully shot) rumpy-pumpy and the most gorgeous costumes you’re likely to see anywhere. It’s the kind of thing for which the term “frippery” might well have been coined – a glittering jewel to behold.
Finally, Ripper Street. Set in Whitechapel in the aftermath of the Ripper murders, this series doesn’t flinch from the muck, poverty and corruption of Victorian London. Matthew Macfadyen is perfectly stoic as the head of a fine cast, but for my money it’s Jerome Flynn’s magnificent turn as the lovelorn bruiser Sergeant Drake that steals the show.
So, what else should we be reading and watching?