Random Thoughts on Equality

Yesterday’s Supreme Court rulings on DOMA and Proposition 8 prompted a rush of reactions in me that were not necessarily coherent or connected. So in no particular order….

1) About that “other planet” that several of the Justices seem to occupy: I was astonished to read, in Roberts’ DOMA dissent, words to the effect that it would be “unfair to tar Congress with the brush of bigotry” when analyzing the motives for DOMA’s original passage. Earth to Roberts–it is unnecessary to speculate about the motives for DOMA. Read the frigging legislative history. No one was hiding those motives. And they weren’t pretty.

2)  It is an axiom of genuinely conservative jurisprudence that judges should not strike down laws simply because they find those laws flawed or stupid. To put it another way, it is a central principle of constitutional review that the Court should not substitute its judgment for that of a legislative body absent a constitutional violation. Doing so is the definition of “activism.” Yet,  just the day before yesterday, Roberts and the other “conservatives” were perfectly willing to do just that–to strike down Congressional reauthorization of Section 4 of the Voting Rights Act because they didn’t agree with Congress’ analysis of the evidence about which states to include. Yesterday, presumably with straight faces, they wanted to defer to the Congressional decision to ban recognition of same-sex marriages in DOMA. There’s a Yiddish word for this sort of blatant hypocrisy: chutzpah. (I mean, shit, they could at least have waited a week before executing a jurisprudential U-turn….)

3) I see that Indiana’s embarrassing excuse for a Governor is urging the General Assembly to go forward with efforts to place a same-sex marriage ban in the state’s constitution, and Brian Bosma was quick to agree. I find two things in particular infuriating about their smarmy pronouncements: their assumption that other people’s fundamental rights should be subject to majority vote, and the absolute ignorance they display about the nature and purpose of constitutions. Who voted to recognize your marriage, Governor Pence? More to the point, it is totally inappropriate to insert extraneous provisions–be they property tax caps or rules affecting marriage–into a state constitution. It betrays a breathtaking ignorance about the very different legal functions of constitutions and statutes.

4) Speaking of ignorance, in the aftermath of the marriage decisions, we’ve been treated to hysterical rants from both Michelle Bachmann and Rand Paul. As Nancy Pelosi eloquently said when asked about Bachmann’s screed, “who cares?” Rand Paul–who actually expects his Presidential ambitions to be taken seriously–predicted that we’d soon see people marrying their dogs. Um–Rand, that “oldie but goodie” went out of fashion twenty years ago. Fortunately, the constituency that Bachmann, Rand and the Governor are pandering to is dwindling rapidly.

5) Today’s decisions were what I had expected. Marriage equality still has a way to go, and in Indiana, we still have to fight the dark side. That said, even the most conservative court in my lifetime was compelled by precedent and a huge shift in popular opinion to do the right thing. In the aftermath of today’s rulings, some 40% of the US population will live in marriage equality states. Businesses in non-equality states will have increasing difficulties recruiting talented workers, and in luring new employers. (If you were a business choosing a new location, why in the world would you pick Alabama or Mississippi? Or Indiana? You’d go where education was good, talent was available, and you could be competitive for the best workforce.)

6) What happens now? What does the legal landscape look like in the wake of these decisions?  My friend Steve Sanders has a great post at Scotusblog.

So–a good week for gay rights. Not a good week for African-American or Hispanic voters. A draw for Affirmative Action.

At least they’re going home now.


  1. The evisceration of the 5th amendment in Salinas v. Texas, along with the VRA case, put the court into “shocks the conscience” territory.

  2. I’m wading through Kennedy’s decision in the DOMA case, and was struck by him saying that all you need to do is look at the title of DOMA (“Defense of Marriage Act”) to see that it represents the type of animus violating the Equal Protection and Due Process clauses of the Constitution.

    Hmm……..The Indiana offering (HJR-6) is titled “The Indiana Marriage Protection Amendment”. By the same folks who think Hoosier drivers need protection from having to see IYG specialty license plates.

    Kinda makes you wonder……

  3. I believe that, due to the backlash from their decision on the Voting Rights Act, they are seeking to regain lost respect and lost confidence in their judgement by their votes on DOMA and Proposition 8. In the first place; no one in position of final authority over the laws of this country should be APPOINTED for life. These appointments always lead to cronyism by the sitting administration and at times these appointments are held up by partisanism. The thought of Clarence Web sitting in judgement over others for life is frightening; the same goes for Roberts. Web isn’t man enough to state his reasoning regarding his votes and Roberts is an overt bigot. Sad that the highest court in the land is overloaded with bigots – primarily men as usual.

  4. I still haven’t sorted this out, but if there’s some “penumbra”right in the Constitution that prohibits the federal government from denying states equal dignity, how can Indiana pass a law or constitutional amendment denying human beings equal dignity?

  5. I have to say, now that I’ve gotten into Scalia’s dissent in Windsor (in which he and Alito disagree, by the way), I want to regurgitate at his saying that there’s no Congressional standing because the founding fathers viewed SCOTUS as the weakest by far off the three branches, unable to overturn the will of the people through Congress. Yeah….sure……and so that’s why Section 4 of the Voting Rights Act was overturned the day before!

  6. Wow. You people must be living on a different planet. Lot of negative energy here. I, along with most people who read the decisions, interpreted the majority opinions in Windsor and Hollingsworth quite differently. Married gay couples will now get the benefits and rights under more than a thousand federal laws that belong only to straight couples now, and the reinstatement of the California Supreme Court opinion striking down Prop. 8 means gay marriages are once again legal in California. As Scalia’s dissent notes, the other shoe will drop soon on the state-enacted DOMA laws as a result of the Court’s decision in Windsor. You can’t read Windsor and find room for upholding state DOMAs, which were not before the Court in this case.

  7. A comment and a question, though my comment has probably been thoroughly touched upon by better writers than me.

    I think it was Scalia’s acidic dissent that essentially said there was no reason for the courts to strike down rulings on matters that aren’t strictly constitutional matters. He argued that those matters are deferred to the people, decided by legislators duly elected. And yet, I found myself in awe at the gall of that line of thought as it would undermine so many Supreme Court decisions– it certainly doesn’t square with a vote against the VRA which was last updated by a wide margin in 2006.

    My question is regarding your comment pointing out Pence’s desire to renew the push for a constitutional ban on same sex marriage in Indiana. In this I suppose my question is two-fold. First, I think it’s safe to assume there are enough red districts in Indiana to push it through a second assembly as required by law. But, the demographics are rapidly changing, so I wonder if it could pass a state-wide referendum. Do you think that is a likely scenario in very red Indiana?

    Second, reading Kennedy’s opinion I did find myself agreeing slightly with Scalia’s dissent. In that I think it does give equality proponents ammunition to challenge these matters in courts. So assuming the GA passes the amendment, and it is ratified and becomes law, do you think The Windsor ruling will help a challenge at the state level?

    In the long run, I think the momentum has shifted. I see equality winning out. I think that at this point, it can’t happen soon enough, but friends of the cause should take heart in these victories.

  8. I actually agree with Gary, Chris and Scalia that these decisions make it much more likely that mini-DOMAs will eventually be overturned.

    As for Indiana, I think there is a reasonably good chance that a vote on a Constitutional amendment will fail. A lot depends upon how good a campaign is waged by the pro-equality side.

  9. I would agree with Gary except for one thing. I think Kennedy’s muddled reasoning in which he blended several constitutional concepts in a confusing mosaic is an indication he was writing a compromise opinion to get the liberals’ vote. I don’t think that majority would hold together on a constitutional challenge to the state laws. My guess is there would only be 2 or 3 justices willing to go that far. I think they want the political process to play out. Ginsburg has made that quite clear that she thinks what they did with Roe in 1973 was a mistake. She said they should have let the political process play out longer so a consensus developed before handing down such a sweeping decision. While I don’t think justices should be writing decisions based on political considerations, clearly she does consider that as a factor.

  10. I would agree with Sheila that I have doubt the constitutional amendment banning same sex marriage would pass in Indiana. And, if it doesn’t, probably within 10-15 years there will be a law making same sex marriage legal passed in the Indiana General Assembly.

  11. Not sure what Gary disagrees with in my comments, if anything….but I certainly agree that these decisions make it easier, if not indeed (as Scalia suggests) provide the language for eventual overturning of DOMA.

    I guess it’s also fair to observe that depending on whose ox is being gored, overturning of a Congressional law representing the “will of the people” by the unelected judiciary is either an exercise of elitist tyranny or protecting the minority from the tyranny of the majority. And I suspect that will always be a feature of a government of men/women, not laws…..professing that its the other way around.

  12. (If you were a business choosing a new location, why in the world would you pick Alabama or Mississippi? Or Indiana?)

    While traveling through Indiana on I-65 some years ago I stopped for fuel in a rural location south of Indianapolis. There happened to be an adult bookstore at this exit across from the service station and there on the roadside at the entrance of this adult business was a guy taking pictures of the stores customers with a sign saying he will put their license plate numbers on the Internet. He had a tent cover for shade, cooler, and by looking at the trampled grass around him it appeared he had been there for weeks, maybe longer.
    No doubt his hatred for pornography was learned at his church and since he is a good Christian, he is always right. And this belief gives him the right to force others to see the world and live by his standards. So much so that he is willing to go out every day and try to ruin innocent peoples lives…
    …with a population in Indiana full of people like this guy, good luck trying to pass any laws on gay marriage….their icky people, just like the hetro’s who have sex for pleasure.

    He has the right to protest/boycott any business he feels a threat to his way of life and I would protect that right along with him, but the individuals entering the business have not broken any laws and have a right to be there too. There are no surprises, no sex offenders or convicted murderers hiding out there, the customers know what type of business they are entering. Same as an abortion clinic.

    Since I always travel with video equipment, after fueling up I drove into the Adult Store’s parking lot, grabbed my video camera and started to tape him and continued to tape as I pulled out past him making sure he seen me tape his plate number. Than sped off to the interstate and away, as he frantically took pictures of me.

  13. Don, Go back and read Justice Kennedy’s opinions in Romer v. Evans and Lawrence v. Texas. When you read his opinions in those cases with his latest opinion in Windsor, there is no question where he’s leading the Court on the state DOMAs. Unless the make-up of the Court changes in a way that is inconceivable within the next three years, the state DOMAs are operating on borrowed time.

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