Kennedy: Don't Clean Up the Mess Too Quickly
It was sad, though, that Justice Kennedy was so anxious to screw this up that he even granted a stay for Nevada; state officials reminded him that they hadn't asked for one, so he decided to grant them an amended ruling that generously allowed them to go forward as instructed by the Ninth Circuit.
Rachel Maddow did a nearly giddy segment the other night, including an interview with Edie Windsor. And somewhere in her coverage following the SCOTUS rejection, Maddow tried to figure the calculations of the conservative wing and why they weren't ready to take on the issue at this time. (The transcript isn't up at this time, but that part of the analysis starts at 4:30 in the playback.)
One wonders at Kennedy's stay; the logic, whether juristic, political, or merely cynical, suggests the four conservative justices know the outcome. Former Solicitor General Walter Dellinger discussed the Fourth Circuit ruling in the context of Loving v. Virginia with Melissa Block, for NPR's All Things Considered on Tuesday, noting, "the gay marriage case was decided as a matter of logic a dozen years ago, in 2003, when the Supreme Court in Lawrence against Texas struck down the laws that made homosexual acts a crime".
As this has all been coming to a head, I've been pushing what I call the Rubin pathway, as it really has been inevitable: Article IV, Amendment XIV, end of argument:
To the other, if marriage equality has another day before the Supreme Court (likely the Autumn, 2015 docket at the earliest), it will be an Article IV fight, and I almost can't wait to hear what Justice Scalia comes up with. Or there's a possibility he will recognize his own dissent in Windsor and give up the ghost. It would be 6-3, 8-1, or 9-0. Scalia can't win Roberts or Kennedy on that point, with the remaining questions being Alito and Thomas; will they poodle up? And if not, will Scalia hold out or give up the ghost? To the one, it will be entertainment. To the other, while Dellinger's explanation seems reasonable enough—
—its implications are chilling. To what degree is this a political calculation in the context that the Court somehow fears the legislatures or Congress? And to what degree is it a political calculation that they're afraid of bad PR? That is to say, sure, it's easy enough to comprehend the point, but in the meantime people's civil rights hang in limbo.
You know how we hear Republicans whining about whether Obama leads from the front or behind? Well, why the hell should Justice lead from behind? Blindfolded, She cannot see the field. From the rear, She cannot bring her tools to bear against injustice.
Justice Kennedy gave no reason for the stay. And Article IV is on the table:
The thing is that while it only takes four justices to agree to hear a case, the conservative wing and Justice Kennedy passed on the opportunity to hear the case out of the Fourth Circuit.
One wonders about the stay. And one wonders what comes next.
____________________
Notes:
Maddow, Rachel. "'Edie and Thea' lead the way to marriage equality, argle-bargle notwithstanding". The Rachel Maddow Show. msnbc. October 6, 2014. msnbc.com. October 9, 2014. http://www.msnbc.com/rachel-maddow-...ea-lead-way-to-marriage-equality-338485315550
Block, Melissa. "Gay Marriage Ruling Evokes Memories Of Loving V. Virginia". All Things Considered. October 7, 2014. NPR.org. October 9, 2014. http://www.npr.org/2014/10/07/354371684/gay-marriage-ruling-evokes-memories-of-loving-v-virginia
Kennedy, J. Anthony M. "Order". Otter v. Latta. Supreme Court of the United States. October 8, 2014. sblog.s3.amazonaws.com. October 9, 2014. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A374-new-Kennedy-order.pdf
Reinhardt, Stephen. "Opinion". Latta v. Otter and Sevick v. Sandoval. United States Court of Appeals for the Ninth Circuit. October 7, 2014. sblog.s3.amazonaws.com. October 9, 2014. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Idaho-Nevada-marriage-9th-CA-10-7-14.pdf
Reporter: If Thea were here, or I don't know if you believe in an aferlife, but what do you think she's thinking right now?
Edie: Thea? 'You did it, honey!'
Edie: Thea? 'You did it, honey!'
It was sad, though, that Justice Kennedy was so anxious to screw this up that he even granted a stay for Nevada; state officials reminded him that they hadn't asked for one, so he decided to grant them an amended ruling that generously allowed them to go forward as instructed by the Ninth Circuit.
Rachel Maddow did a nearly giddy segment the other night, including an interview with Edie Windsor. And somewhere in her coverage following the SCOTUS rejection, Maddow tried to figure the calculations of the conservative wing and why they weren't ready to take on the issue at this time. (The transcript isn't up at this time, but that part of the analysis starts at 4:30 in the playback.)
One wonders at Kennedy's stay; the logic, whether juristic, political, or merely cynical, suggests the four conservative justices know the outcome. Former Solicitor General Walter Dellinger discussed the Fourth Circuit ruling in the context of Loving v. Virginia with Melissa Block, for NPR's All Things Considered on Tuesday, noting, "the gay marriage case was decided as a matter of logic a dozen years ago, in 2003, when the Supreme Court in Lawrence against Texas struck down the laws that made homosexual acts a crime".
As this has all been coming to a head, I've been pushing what I call the Rubin pathway, as it really has been inevitable: Article IV, Amendment XIV, end of argument:
Enter Article IV. Before Judge Rubin was an intrafamily adoption issue in which the original and adoptive parent were legally married in California. The question is simple: Can the Defense of Marriage Act, or any other statute, exclude a class of marriages from the states’ obligations under Article IV, Section I, the Full Faith and Credit Clause?
The answer is obvious. But consider the content of those two paragraphs from the end of Judge Rubin’s ruling. In that tangle of legal instruction, Judge Rubin orders the State of Louisiana to:
Under Amendment XIV, now that these Louisiana residents are legally married under state law, the state cannot refuse such marriage to others. From there, quite simply, a state telling its residents to go to another state to get married is simply an undue burden to equal protection.
Somewhere around Sciforums, there is an old post in which the counterpoint was that Article IV, the Full Faith and Credit Clause, leaves the states to decide what acts, records, and proceedings of other states to recognize. It's an impossible proposition. Imagine Kansas schoolchildren being denied admittance to the University of Washington because the Evergreen State decided that the Kansas school curriculum is so screwed up that they will not recognize the legitimacy of high school diplomas issued in the Sunflower State. Or a governor refusing extradition because he doesn't like the law the fugitive is accused of breaking in another state.The answer is obvious. But consider the content of those two paragraphs from the end of Judge Rubin’s ruling. In that tangle of legal instruction, Judge Rubin orders the State of Louisiana to:
• Recognize the California marriage.
• Thereby recognize the adoption.
• And, thus, under Amendment XIV, end the same-sex marriage ban.
The logic works this way: Is the marriage legal? Yes. Can Louisiana refuse to recognize the acts, records, and proceedings of the State of California? No. Therefore: Angela Costanza and Chastity Brewer are legally married in Louisiana.• Thereby recognize the adoption.
• And, thus, under Amendment XIV, end the same-sex marriage ban.
Under Amendment XIV, now that these Louisiana residents are legally married under state law, the state cannot refuse such marriage to others. From there, quite simply, a state telling its residents to go to another state to get married is simply an undue burden to equal protection.
To the other, if marriage equality has another day before the Supreme Court (likely the Autumn, 2015 docket at the earliest), it will be an Article IV fight, and I almost can't wait to hear what Justice Scalia comes up with. Or there's a possibility he will recognize his own dissent in Windsor and give up the ghost. It would be 6-3, 8-1, or 9-0. Scalia can't win Roberts or Kennedy on that point, with the remaining questions being Alito and Thomas; will they poodle up? And if not, will Scalia hold out or give up the ghost? To the one, it will be entertainment. To the other, while Dellinger's explanation seems reasonable enough—
You know, this issue may seem fresh but it's moved so fast. There's a concept called the normative power of the actual. That is, what is seems right. And, I think, what the court is doing is letting more and more of the country get accustomed to the idea of gay marriage. The court knows where it's going on gay marriage and, in some senses, known it for a dozen years. It's a question of timing. By waiting until more of the country has experienced their friends and neighbors being married and nothing bad happened, the less the court would provoke a backlash. And I think it does, and not inappropriately, influence the court.
—its implications are chilling. To what degree is this a political calculation in the context that the Court somehow fears the legislatures or Congress? And to what degree is it a political calculation that they're afraid of bad PR? That is to say, sure, it's easy enough to comprehend the point, but in the meantime people's civil rights hang in limbo.
You know how we hear Republicans whining about whether Obama leads from the front or behind? Well, why the hell should Justice lead from behind? Blindfolded, She cannot see the field. From the rear, She cannot bring her tools to bear against injustice.
Justice Kennedy gave no reason for the stay. And Article IV is on the table:
Defendants argue that their same-sex marriage bans do not discriminate on the basis of sexual orientation, but rather on the basis of procreative capacity. Effectively if not explicitly, they assert that while these laws may disadvantage same-sex couples and their children, heightened scrutiny is not appropriate because differential treatment by sexual orientation is an incidental effect of, but not the reason for, those laws. However, the laws at issue distinguish on their face between opposite-sex couples, who are permitted to marry and whose out-of-state marriages are recognized, and same-sex couples, who are not permitted to marry and whose marriages are not recognized.
(Reinhardt, 13; boldface accent added)
(Reinhardt, 13; boldface accent added)
The thing is that while it only takes four justices to agree to hear a case, the conservative wing and Justice Kennedy passed on the opportunity to hear the case out of the Fourth Circuit.
One wonders about the stay. And one wonders what comes next.
____________________
Notes:
Maddow, Rachel. "'Edie and Thea' lead the way to marriage equality, argle-bargle notwithstanding". The Rachel Maddow Show. msnbc. October 6, 2014. msnbc.com. October 9, 2014. http://www.msnbc.com/rachel-maddow-...ea-lead-way-to-marriage-equality-338485315550
Block, Melissa. "Gay Marriage Ruling Evokes Memories Of Loving V. Virginia". All Things Considered. October 7, 2014. NPR.org. October 9, 2014. http://www.npr.org/2014/10/07/354371684/gay-marriage-ruling-evokes-memories-of-loving-v-virginia
Kennedy, J. Anthony M. "Order". Otter v. Latta. Supreme Court of the United States. October 8, 2014. sblog.s3.amazonaws.com. October 9, 2014. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A374-new-Kennedy-order.pdf
Reinhardt, Stephen. "Opinion". Latta v. Otter and Sevick v. Sandoval. United States Court of Appeals for the Ninth Circuit. October 7, 2014. sblog.s3.amazonaws.com. October 9, 2014. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/Idaho-Nevada-marriage-9th-CA-10-7-14.pdf