Connecting the Dots: U.S. Evangelicals and Ugandan Homo Death Bill
Over on 365gay today, I explore the connection. Makes for interesting, yet chilling reading — as does the article from Harper’s that I link to there.
How Incoherence Has Ruined Articles About Women’s Tennis
This just-published preview from Sunday’s NY Times Magazine is entitled “How Power Has Transformed Women’s Tennis.”
Based on its length, I’d guess that it’s the cover story. That’s potentially good, as the Times is one of the few major media outlets to give tennis the coverage it needs (and deserves). They also ran a long-form piece on Nadal in the Magazine a year or so ago, and featured Elena Dementieva — of all people — on the cover of their since-discontinued Play Magazine.
Good, that is, until you actually read the story. I could find no organizing narrative, no effort to make sense of interview comments that were all over the place, and no sense that the author actually knew anything about tennis. Fans, read it and tell me I’m wrong.
The DIY Approach
Today’s column over on 365gay.com looks at the just-filed marriage equality suit in Wyoming. The more I know about it, the less promising it looks. But this kind of thing is going to keep happening until the ramparts of discrimination are battered down.
BTW, Wyoming has a law that prohibits same-sex marriages. If there were a Museum of Irony, it would juxtapose the text of that law with this image:
“Sorry, Sorry, Sorry….”
Here we go again. Another prominent Republican, this time former RNC Chair and Bush Campaign Manager Ken Mehlman comes out (to the Atlantic’s Marc Ambinder).
And now he’s, like, all into equality and stuff.
Here’s the core of his infuriating mea-sorta-culpa:
Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”
He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”
How it Happens: The Logical Sequence of LGBT Rights
In today’s column on 365gay, I look at how LGBT rights are advanced. It seems to me that this happens in a kind of logical way — except when it comes to marriage and adoption, with adoption rights generally allowed gay and lesbian individuals and couples even before the right to marry is granted.
Why? Read the piece and find out (or at least get some reasons why this might be so).
“It Ignores the Writings of [Three Long-Dead Guys]“
In an op-ed in today’s Washington Post, former Reagan AG Ed Meese takes Judge Vaughn Walker to task for ignoring facts and evidence that would supposedly have supported the state’s interests in restricting marriage to opposite-sex couples. One thing that Meese didn’t like about Walker’s opinion:
“It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell.”
That’s really it, isn’t it? The defenders of marriage fall back on tradition and history, little realizing (or acknowledging) that the institution of marriage that these (admittedly) great men spoke of bears little resemblance to the version on offer today. Blackstone, for example, whose influential Commentaries on the Law of England were completed before the U.S. existed, spoke of marriage from the perspective of coverture, a principle by which a married woman’s legal existence was swallowed whole by her husband. This quote will give you the flavor of how extensive the disability was:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage….For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.”
How could Walker have ignored the bewigged Blackstone’s writings? Here’s a better question: How benighted is Meese — not only to chide Walker for failing to consult Blackstone, but to think that his argument would be strengthened by this point? Yet his failure gets at the real deficiency of the anti-equality forces: They don’t have any arguments that work under current, and generally well-accepted, views of what marriage is, or should be.
We Do Care
I wish I were joking. Listen to this.
The Prop 8 “Stay Go-Round”
As reported in about a scrillion places last week (but nowhere so brilliantly as here), Judge Vaughn Walker denied the Prop 8 proponents’ motion for a stay pending appeal of his decision in the Perry case. Erring on the side of caution, though, he stayed the stay (huh?) for a few days in order to give the federal appellate court time to consider an emergency appeal.
This evening, with papers for and against the appeal (find both here) having been filed, the court issued this terse order (I’ve stripped out the legalese for your reading enjoyment):
Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court…orders that this appeal be expedited….
This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)
That’s it. But what an “it”! The case that the court cited, Arizonans For Official English v. Arizona, takes a very stingy view of standing. Although this is cheating, here’s the relevant part of the overview from the case (cheating because the overview is a summary and not part of the official holding):
A state employee sued the state of Arizona and the governor for a judgment declaring that the provisions in Ariz. Const. art. XXVIII making English the State’s official language were unconstitutional. The State was dismissed as a party, the trial court entered judgment in favor of the employee, and the governor declined to appeal. However, the appellate court allowed the sponsor of the initiative for art. XXVIII and its chairman to intervene, and affirmed the trial court’s judgment. On appeal, the [Supreme C]ourt vacated the judgment and held as follows: The employee resigned from her position with the state during the pendency of the appeal, thus she no longer had standing and her claim was moot. Neither the sponsor nor its chairman had a direct stake in the outcome. Thus, they had no standing and there was no case or controversy before the appellate court, and under U.S. Const. art. III, the appellate court had no jurisdiction.
The highlighted language reflects the part of the overview that most closely parallels this case. The Supreme Court could always wriggle around this, or simply overrule it (in the corporate financing case, Citizens United, for example, the Court was little troubled by overruling even its very recent precedent). But as long as Arizonans for Official English stands, it’s a substantial obstacle for the Prop 8 proponents. They’d better hope that the state appeals, but they’d also better not count on that happening.
Update on this point: For a much more comprehensive treatment of the standing issue (which ultimately comes to the same conclusion — that the proponents have a heavy lift on this question), see David Cruz’s excellent guest blog here.
Don’t get giddy yet. In a case like this, even the standing issue (which will itself be decided by a panel that had nothing to do with today’s ruling) could then go to an en banc hearing (of 11 of the court’s judges) and then to the Supreme Court. So even if the defenders lack standing to appeal, we likely won’t know that for some time yet.
I can’t help concluding this post with a brief observation on the similarity between Arizonans United and Perry. Both cases involved popular referenda that gave voice to a caste-based principle of subordination. This is popular democracy at its worst, and the very reason courts are standing by to enforce constitutional rights. Standing might not be the most viscerally satisfying way of expressing judicial rejection of this ugly impulse, but in its way it affirms an important truth: Those who support initiatives aren’t the ones directly affected by them. Their ability to get enough signatures for the ballot, and then to play to primal fears (nativist, Christianist, and so on) to get their measures passed, can’t and won’t deter courts from discharging their constitutional duty.
Analysis of Judge Walker’s Decision Denying Stay of his Prop 8 Order
Earlier this afternoon, Judge Vaughn Walker issued another explosive ruling in the Prop 8 case: There will be no stay of his decision declaring Prop 8 unconstitutional while the case works its way up through the appellate process. He did, however, allow the current stay to remain in place through next Wednesday, August 18 (at 5 pm PDT) to allow the Prop 8 proponents (or, I suppose, the state or AG) to ask the appellate court to hear and grant an emergency appeal of this latest ruling.
For all of the political posturing on the wisdom of the stay, the legal analysis is really quite straightforward. In deciding whether to grant a stay, courts consider four factors: (1) whether the party seeking the stay has a likelihood of success on the merits; (2) whether the party seeking the stay would suffer irreparable harm absent the stay; (3) whether some other interested party would be harmed by the stay (or the lifting of it); and (4) whether the stay is in the public interest.
As Walker notes, the first two of these factors are the most important. If neither of those supports granting the stay, recent Supreme Court precedent suggests that the analysis needn’t proceed to the last two. The Court has also emphasized that the party seeking the stay must show not a chance, but a likelihood of success on the merits, and that a judge has wide discretion on whether to issue a stay.
A fairly heavy burden, in all. And the Prop 8 proponents didn’t come close.
First, the judge who’d spent months trying and deciding the case against them wasn’t apt to find that they now have much chance of success on the merits. Worse for them, it’s not even clear that they have standing to appeal (for reasons I explained here, and that Walker made clear are serious obstacles). Likelihood of success on the merits of the claim is hard to argue when it’s entirely possible (probable, I’d say) that you aren’t even a proper appellant. You can’t win if you’re not even in the game.
So really, this came down to irreparable harm. And the Prop 8 proponents had a fatal problem on this score. In fact, Judge Walker’s analysis of why the Prop 8 proponents failed to satisfy this standard dovetails nicely with one of the points I’ve been making all along about the legal flaccidity of the case against marriage equality:
The irreparable harm is suffered entirely by the couples who can’t marry, not by the state (which is, remember, the “real” defendant here) or anyone else. Moreover, the Prop 8 proponents aren’t the “state,” despite their efforts to conflate their interests and the states’. (In fact, the state’s position against the stay puts lie to the argument that the Prop 8 proponents and the state have a community of interest, let alone identity.)
And the court didn’t think much of the Prop 8 proponents’ newly discovered concern for the other parties — the same-sex couples. According to proponents, these marriages would be in a confusing limbo were they permitted to happen before the case is fully resolved. But, the court noted, the couples can make that call for themselves, and in any case, the on-again/off-again marriage right situation has already been dealt with in California, and the couples’ status is clear enough: Those marriages entered into between the Supreme Court’s order requiring marriage equality and the passage of Prop 8 taking that right away are valid.
The court could have stopped there, but nonetheless moved on to the third factor: harm to other parties. The failure of the Prop 8 proponents to show harm for purposes of the stay mirrors the problem they had at trial — the trial they rightly feared. Not a shred of evidence supports their conclusion of harm, and their speculative tales of apocalypse can’t stand, legally or morally, against the real and obvious harm suffered by gay and lesbian couples and our children.
But wait! There’s no harm to same-sex couples in having to wait, they argued, because domestic partnership law confers the same benefits and, after all, if getting married were that urgent, the couples would have done so back in 2008 when they had the chance. I’m not going to waste time or your intelligence by responding to these arguments.
The one place that the Prop 8 proponents have a colorable argument is in the fourth factor: the public interest. From their perspective, the public expressed its “interest” in passing Prop 8, and — to continue this line of argument — that decision is entitled to respect. Judge Walker rejected this conclusion based on evidence at trial that Prop 8 actually harms the state, and supports its conclusion with a citation to the Attorney General and a concern that taking away rights is harmful to all citizens.
This last point could be a bone of contention — if the reviewing (Supreme?) court decides that, in this case, the fourth factor should weigh more heavily than it has otherwise suggested it should. Then, we’d have to consider who gets to decide what the public interest is, and how such decisions are to be reviewed.
Again, let’s not lose sight of one important fact: The court gave the supporters time to appeal. So nothing may happen for awhile, yet. But every decision exposing the bankruptcy of the opposition arguments is a victory.
Judge Walker Denies Stay of Prop 8 Decision
Literally moments ago, Judge Vaughn Walker decided not to stay his decision striking down Prop 8. Now let’s see which happens first: same-sex California couples marrying, or the issuance of an emergency stay by the Ninth Circuit. The race is on (but will end if the appellate court decides not to grant the stay on an expedited basis) .
This is getting more and more interesting.
I’ll be back with an analysis of the decision soon.
Update: The decision is here. He did lift the stay, but not just yet. The lifting of the stay is itself stayed until August 18 (next Wednesday) at 5 pm PDT. This will give the Prop 8 proponents time to seek an emergency stay.