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?
I love words, despite the indignities I enforce upon them, so I relish a little bit of grammar geekery.
Petri piles on poor old Bill Keller (isn’t being married to Emma punishment enough for you jackals?), not only for being a concern troll and a horrible human being but, worse still, a blatant and premeditated user of “passive constructions” in his writing. As Petri puts it:
Concern trolls thrive on passive constructions the way vultures thrive on carcasses.
Pullum wonders whether Petri might be getting her “passive” confused with her “obscured agency”, and details his analysis in the Language Log post. There are tables and numbered lists. It’s great fun.
Pullum also links to his tutorial essay which provides a “clear and simple explanation of what a passive clause is” in English, and his forthcoming article Fear and Loathing of the English Passive (pdf):
No folk rhetorical property could yoke together this diverse array of constructions. What is going on is that people are simply tossing the term ‘passive’ around when they want to cast aspersions on pieces of writing that, for some ineffable reason, they don’t care for. They see a turn of phrase that strikes them as weak in some way, or lacks some sort of crispness or brightness that they cannot pin down, and they call it ‘passive’ without further thought. And such is the state of knowledge about grammar among the reading public that they get away with it.
If concealed passives dipped in a little bit of scorn are your thing, then that will keep you entertained for a while.
Meanwhile, in segues, music. Sunday is Australia Day, and one of Australia’s proudest traditions – besides pretending to have invented pavlova*; meat pies; footballers in tiny shorts; dispossessing indigenous peoples; and shipping coloured people back where they came from – is the Triple J Hottest 100. Voting on the best music releases for 2013 has ended, but if you feel like an Aussie weekend, tune in online at 12 noon Sunday Sydney time (Saturday evening for most of you).
You may have to crank up the thermostat and buy some Australian beer to get you in the mood. Think James Boag or Little Creatures. Please don’t buy Fosters, because it is watered-down mule piss.
Cheers, buckeroos. I’m off to bed, for there is to be much drinking today, so that we’ve got a headstart on Sunday. I’ll post a post at Balloon Juice at Hottest 100 kickoff time for anyone who wants to listen along.
ETA: * Edited for accuracy
EATA: Jesus, you’re going to turn me into Greenwald.
Petri probably was using the term “passive construction” in some rhetorical sense to mean “hiding behind the alleged views of others”, but that means she was being unclear, and exposing herself to the argument that she didn’t know what the term meant. I’m a writer who agonises over every word (and I still manage to fuck up half my posts). I try to use words in a way that avoids confusion, and Petri wasn’t doing that.
I agree, however, that that doesn’t mean she deserves to be called a nincompoop.
In December 2013, in a 6-1 vote, the City Council of Shreveport, Louisiana passed an non-discrimination ordinance which covered LGBT people. The one vote against was a councilman by the name of Ron Webb.
Webb recently introduced a motion to repeal the non-discrimination ordinance.
Transwoman Pamela Raintree turned up to the City Council meeting where Webb’s motion was to be debated, and this happened:
In her speech against the motion Raintree said, “Leviticus 20:13 states, ‘If a man lie also with mankind as he lieth with a woman, they shall surely put him to death.’ I brought the first stone Mr. Webb, in case that your Bible talk isn’t just a smoke screen for personal prejudices.”
Webb withdrew his motion, which might just go to show that it’s not entirely impossible for a godbotherer to feel shame.
The delightful bspencer at Lawyers, Guns & Money:
This is what happens when you have a tiger by the tail, but you made the tiger. And you made it out of poop-flinging piranhas. How do piranhas fling poop? I don’t know. I’m not the one who Dr. Frankenmcardled the piranhatiger. Please quit asking me stupid questions.
What I’m saying is that Megan McArdle gets the commentariat she deserves, the one she created.
… and the wonderful Thers at Whiskey Fire, with a more in depth mcarglebargling:
Megan McArdle —
Yeah, I know, it’s probably pointless, but what the hey.
Megan McArdle delivers herself of a 59,000-word blog post (give or take) wherein she McSplains that while sexism exists, nobody, especially girls, should ever ever ever call anyone a sexist, no matter how sexist their behavior, because that is like shooting them with a gun, a gun that might cause hurt feelings. (Literal guns of course are harmless and everyone should have like nine of them, to go with their artisinal Moroccan fig-basters and stainless steel Syosset heritage goose denipplers.)
The decision of the Supreme Court to grant a stay of same-sex marriages in Utah shouldn’t really come as a great surprise, whatever the actual merits of the stay application.
The attorneys from the Utah AG’s office have shown no particular signs of competence. Take, for example this passage from Judge Shelby’s decision denying the State a stay on December 23:
The court had a telephone conversation with counsel from both parties a few hours after it issued its order. The State represented to the court that same-sex couples had already begun marrying in the Salt Lake City County Clerk’s Office and requested to the court to stay its Order of its own accord. The court declined to issue a stay without a written record of the relief the State was requesting, and asked the State when it was planning to file a motion. The State was uncertain about its plans, so the court advised the State that it would immediately consider any written motion as soon as it was filed on the public docket.
Now, that all sounds fairly innocuous but, although I’m not a constitutional lawyer, I’ve been in and out of a few court rooms in my day, and those last two sentences are like a silk-wrapped brick around the ears. When a judge politely asks you exactly when you were planning on actually filing the motion you are seeking, the correct answer is never, ever, “We’re not sure”. My lawyers call that a CLM.
Rachel Maddow blamed it on incompetence, and I don’t disagree. However, I suspect there may also have been an element of hubris, a misplaced confidence that Shelby (National Guard, Desert Storm, the United States Army Achievement Medal and the National Defense Service Medal; a BA from Utah State and a Juris Doctorate from University of Virginia; a law firm practice in commercial litigation and personal injury; a registered Republican with a wife and two kids, who was endorsed by Orrin Hatch and Mike Lee for his qualifications and his “unwavering commitment to the law” when he was appointed to the District Court, if you believe the wikipedia) wouldn’t do anything so silly as letting the gays get married. Not in Utah, surely.
The AG’s office has spent the last two weeks desperately trying to stick the ferret back in the bag where the ferret don’t want to go. Their stay application to the Supreme Court (which you can find here, along with the couples’ response here) parroted the usual guff – that the same sex marriages occurring in Utah are an “affront” to the rational interest of the State in banning same-sex marriage, because the ban somehow makes straight, married people have more babies, and that the couples seeking to be married are seeking a new right called “same-sex marriage”, rather than the established right of “marriage” which right, they note, the gays are perfectly free to use as long as they marry someone whose genitals revolt them, like in the bible.
Still, on one front they are right – this is a question that the Supreme Court needs to decide and, until they do so, the better position is probably to preserve the pre-decision status quo in Utah, no matter how touching the photos of gay Utahnanians getting hitched, or how entertaining the freakout by the godbotherers about the gays touching marriage and getting dirty fingerprints all over it.
With the stay issue out of the way, one would like to think that we might be able to get back to talking about the substance of Shelby’s decision, at least until that Duck Dynasty guy gets caught cottaging or one of Mitt Romney’s grandkids turns out to be asian. Read the rest of this entry »