Another one bites the dust, and another one down…

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 Daddy Bush, 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.

scalia

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.

I have gone on, and left myself little room for the more recent decision – that of Judge Arenda L. Wright Allen, an Obama appointee from the District Court for the Eastern District of Virginia.

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.

Loving

Cut. Print. This baby is done.

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136 replies
  1. 1
    some guy says:

    Gay rights are human rights.
    Gay rights are human rights.
    Gay rights are human rights.
    Gay rights are human rights.

    how many times will we need to repeat this so even the dim-witted will understand that Gay rights are human rights?

  2. 2
    NotMax says:

    (appointed by Dubya, for those who are keeping score)

    Judge Heyburn was appointed by Bush père.

  3. 3
    beltane says:

    @some guy: People like Scalia don’t believe in human rights for anyone but the unborn so the “Gay rights are human rights” argument is not likely to carry much weight with them.

    I love that picture. Too bad he wasn’t accompanied by someone wearing a Catherine of Aragon costume.

  4. 4
  5. 5
    Kay says:

    That picture is the best. He’s a black-robed tyrant! Remember when conservatives used to say that about judges?

    Except their own judges. Just balls and strikes over there.

  6. 6
    jl says:

    I have a dumb question. Why is citing Scalia’s opinion such a big deal. It wasn’t the majority opinion, right?

    Is there some particular legal or constitutional issue addressed in Scalia’s opinion? Or are judges just taking potshots at the guy for his disservice to conservative (in some more respectable sense of the word) jurisprudence?

    IARRRRNAL AL.

  7. 7
    beergoggles says:

    The marriage issue is going to be resolved just in time for a spate of marriage targeted discrimination laws against LGBT people to be challenged in court next.

    First Kansas: http://joemygod.blogspot.com/2.....izing.html

    Then Idaho & Tennessee: http://www.deathandtaxesmag.co.....cial-ways/

  8. 8
    beltane says:

    @Kay: He’s wearing a replica of the hat worn by Thomas More in the Holbein portrait of him. Where we see “black-robed tyrant”, Scalia sees “Martyr to principal and the Holy Church”.

  9. 9
    Petorado says:

    The first sentence in the Loving statement really nails it: the state’s only role in marriage is to certify the legal obligations and benefits of a contractual obligation between two parties. There’s no other area of contract law where opponents have been allowed to use narrow religious doctrines to legally negate contracts between two consenting parties, which is why gay marriage bans have no legal standing.

  10. 10
    🎂 Martin says:

    The long arc is easy to see if you’re open to seeing it. Even Fat Tony can see it. He just doesn’t like it.

  11. 11
    kc says:

    Great post; thank you, Sarah.

  12. 12
    Anoniminous says:

    @some guy:

    Considering the Newsmax headline:

    Limbaugh: Heterosexuals ‘Under Assault’

    another 1.739 x 10^27 times.

  13. 13
    dmsilev says:

    @jl: I think part of it is sticking a finger in Scalia’s eye. This is going to end up back at the Supreme Court, and I think just about everyone expects Scalia to come up with a contorted and contrived explanation as to why his previous reasoning is no longer valid.

  14. 14
  15. 15
    kindness says:

    @Anoniminous: Yes well that is the right wing meme nowdays isn’t it? Take an issue. Turn it on it’s head and suggest it is the favored parties that are being discriminated against. And the MSM laps it up for the most part.

  16. 16
    Suffern ACE says:

    @beergoggles: Oh, you left out South Dakota. I thought the tack was going to be following Oklahoma in just stopping all marriages, but I guess throwing same-sex couples to legally protected on the spot arbitrary decisions of local bureaucrats is the next best thing.

  17. 17
    Belafon says:

    @jl: Because Scalia said in his dissent in the DOMA case was that if we were going to abolish DOMA, then we’d pretty much have to abolish all bans against gay marriage. Since then, judges have been going “yep, works for me.”

    Pretty sure that’s not what Scalia meant to happen.

  18. 18
    Tumbrel for Hire says:

    It kind of makes me happy when Scalia digs in deeper with his hate for marriage equality. It’s basically turned him into the Roger Taney of his generation. Like Taney, no one will remember anything about him other than the fact he was a despicable bigot.

  19. 19
    the Conster says:

    The Loving Story that’s been playing on HBO is a must see, because it ends with the Supreme Court’s UNANIMOUS decision that held, basically, that the Constitutional right to marry, or not marry, a person of another race resides with the individual and can’t be infringed by the state. Period. End of story. Substitute the same sex for another race, and it’s the exact.same.thing. I can’t imagine another unanimous decision around such an important civil rights issue as long as Scalia and Thomas are on the court, but I can definitely see a majority ruling coming, and soon.

    As the credits roll to the Staples Singers singing about how it’s a slow, slow train and it’s moving on, it’s hard to imagine that this won’t be the law of the land, and how 30 years from now we’ll look back on these times in amazement like we do about miscegenation laws which didn’t just prohibit you (if you were white) from marrying, but could imprison you and nullify your marriage from another state.

  20. 20
    Kay (not the front-pager) says:

    Mildred Loving’s statement is just lovely. It truly is the perfect way to open a decision written to overturn a ban on, and uphold the right to marriage equality for, single-sex couples.

    Poor Justice Scalia; his reasoning for why gay-rights cases should not have been decided as they were is now being used as the basis to extend gay rights. Poor baby…

  21. 21
    Sly says:

    @jl:

    Is there some particular legal or constitutional issue addressed in Scalia’s opinion?

    Yes. What is the governmental interest being pursued by preventing same-sex couples from marrying, and is that interest legitimate? Scalia answers the first question in his Lawrence dissent – the moral disapproval of homosexuals as voiced by popular majorities – while the 18-year body of precedent since Romer answers the other: No.

    These cases have all involved proponents of the bans coming up with all sorts of cockamamie rationales for why said bans do not violate the Equal Protection Clause. In Lawrence, Scalia cut to the heart it.

    Or are judges just taking potshots at the guy for his disservice to conservative (in some more respectable sense of the word) jurisprudence?

  22. 22
    dmsilev says:

    @Kay (not the front-pager):

    Poor Justice Scalia; his reasoning for why gay-rights cases should not have been decided as they were is now being used as the basis to extend gay rights. Poor baby…

    They’ve changed the headline, but this TPM story from this morning used to have the lead “Gay-rights warrior Scalia claims another victory”. Points for trolling…

  23. 23
    Amir Khalid says:

    Crikey

    You’ve been just a little bit too long in Oz, methinks, when you find yourself talking like Crocodile Dundee.

    How many American states still have anti-gay constitutional provisions or laws (including specifically forbidding same-sex marriage) and how many such provisions/laws are currently under legal challenge?

  24. 24
    🎂 Martin says:

    @Sly:

    Scalia answers the first question in his Lawrence dissent – the moral disapproval of homosexuals as voiced by popular majorities – while the 18-year body of precedent since Romer answers the other: No.

    Actually, what’s notable in the dissent is how Scalia dodges the second question and resorts to whining about the tactics and ulterior motives of the majority. Even Fat Tony knows how to pound the table.

  25. 25
    beergoggles says:

    @Suffern ACE: On one hand I think it helps prove animus to get it struck down even faster. On the other, I’m just worried the catholics (*cough* Sotomayor) on the court are gonna think it’s ok to do it because religion.

  26. 26
    Jay C says:

    @beergoggles:

    Yeah, that proposed Kansas law is a pip: it not only relieves any “religious entity” from having to recognize anything relating to “sex and/or gender” contrary to their “sincere religious beliefs” , but also extends said “waiver” to any government employee in the State. IOW, making execution of the laws and carrying out one’s official duties legally subject to any employee’s whims: as long as they are claimed as a religious belief (and no word, I don’t believe, of any means to verify or qualify said “beliefs”).

    NO way this meets any kind of Constitutional muster…..

  27. 27
    Belafon says:

    @beergoggles: Is there any evidence in her history that she would do anything like that?

  28. 28
    Sly says:

    @beergoggles:

    On the other, I’m just worried the catholics on the court are gonna think it’s ok to do it because religion.

    Keep in mind that this group includes Sotomayor and once included arguably the most liberal justice ever to sit on the court, William Brennan, who joined both dissents in Bowers v Hardwick.

  29. 29
    jl says:

    @Sly: @🎂 Martin:

    thanks for the explanations. So, Scalia answered the first question, dodged the second (as per Sly), and he is being called on it?

    ” Scalia dodges the second question and resorts to whining about the tactics and ulterior motives of the majority.”

    Scalia thinks the majority are in the closet, or what?

  30. 30
    Arclite says:

    As the Klingons would say: “Q’PLAAAAH!”

  31. 31
    Suffern ACE says:

    @Jay C: Oh, and I believe that there’s a “and if you think of suing anyone over this, you’re paying the court costs of the other party, win or lose” clause in there.

  32. 32
    JoyfulA says:

    @Amir Khalid: Pennsylvania’s anti-gay-marriage law is under attack, and our new Democratic attorney general (elected, unlike some other states) declined to defend it on the basis that federal rulings have ruled such laws unconstitutional.

  33. 33
    Sly says:

    @Belafon:

    Is there any evidence in her history that she would do anything like that?

    No. And her confrontational questions during Windsor don’t lend themselves well to the assumption that she would.

    She stayed the Utah decision, but that’s pro forma and only to refer the issue to the Supreme Court. Even Ginsburg would have done that were she the one designated to administer emergency requests from the 10th Circuit.

  34. 34

    Tangentially related; India is going to veer hard right in the upcoming elections. Upholding colonial era laws about homosexuality and banning books is just the beginning.
    ETA:Even the foreign policy establishment at the State Dept is acknowledging this reality.

  35. 35
    Mnemosyne says:

    @beergoggles:

    On the other, I’m just worried the catholics (*cough* Sotomayor) on the court are gonna think it’s ok to do it because religion.

    And your evidence that Sotomayor would do this, other than anti-Catholic prejudice, is … ?

    It’s logical to worry about Scalia and Alito because they’re both part of the Opus Dei cult, but worrying about Sotomayor is insane.

  36. 36
    DemJayhawks says:

    @Suffern ACE: The law, as written, is so crazy even our crazy state senators are pulling back. The president of the senate said it didn’t have the support of the majority, so they’re going to look over the bill. How big of them.

  37. 37
    Splitting Image says:

    @jl:

    Is there some particular legal or constitutional issue addressed in Scalia’s opinion? Or are judges just taking potshots at the guy for his disservice to conservative (in some more respectable sense of the word) jurisprudence?

    Two things:

    The constitution-free laws created by the teabaggers are creating a lot more work for the old-school conservatives on the bench as lawsuits work their way through the system to overturn them. Also, in order for people like Alito and Roberts to burrow their way into high places, they need to be promoted over the heads of more experienced and more competent colleagues.

    I think that both of these things are creating a certain amount of resentment. The fact that the teabaggers are prone to calling anyone who disagrees with them a “goat-fucking child molester” isn’t helping either. If Scalia is viewed by his potential replacements as not caring about his job anymore, a lot of them won’t mind giving him a hint to either shape up or retire.

    At this point, I think that a lot of district judges think that this issue is settled law and want the GOP to give up trying to turn back the clock. Every case that goes through the system from here on out is going to be treated as unnecessary work that the knuckle-draggers are forcing on them. Hence the sniping.

  38. 38
    Gene108 says:

    @the Conster:

    I hate Thomas. He got his and wants to pull the ladder up for everyone else.

    The guy lives in Virginia (I believe) and is married to a white woman (named Virginia). He’s old enough to fully remember the pre-Loving laws and how his current marriage would be illegal under those laws, yet will deny others the protection he enjoys thanks to liberal efforts for equality in all walks of life.

  39. 39
    catclub says:

    @Gene108: “He got his and wants to pull the ladder up for everyone else.”

    As Twain said: If you want gratitude, get a dog.

  40. 40
    Redshift says:

    It’s all in good fun, at least until Fat Tony gets his anger on and ruptures a tube.

    And then it’s *better* fun!

  41. 41
    Belafon says:

    @Gene108: Thomas has the Republican “everything’s OK for me” bug. If it doesn’t affect them right this moment, then they don’t care.

    ETA: Which, reading your comment again, is pretty much exactly what you said.

  42. 42
    NotMax says:

    @🎂 Martin

    First time was willing to gloss over and let it slide, but the second time repetitious use as a pejorative prompts one to ask what being fat (or not being fat, for that matter) has to do with anything under discussion?

  43. 43
    dmsilev says:

    @schrodinger’s cat: Did you see this story from yesterday?

    A University of Chicago scholar’s “alternative history“ of Hinduism will be barred from India by its publisher — and its existing copies pulped — to settle an extensive legal battle launched against the tome by a conservative group there.

    Wendy Doniger’s “The Hindus: An Alternative History,” is a 2011 book from the longtime divinity professor and noted Hinduism scholar “that offers a new way of understanding one of the world’s oldest major religions,” according to its publisher.

    Critics of the text, however, decry it as an objectionable, incorrect and illegal representation of Hinduism.

    I’m pretty sure our religious conservatives here would love to be able to do the same thing with any number of targets.

  44. 44
    Anoniminous says:

    @kindness:

    The MSM laps it up because RW hysteria sells eyeballs, newspapers, and clicks and the media is all about selling eyeballs, newspapers, and clicks.

    Aside: I’ve gone from “consuming” newspapers and several weekly and monthly news magazines to nothing because I’ve assimilated the fact the MSM is not a high quality information source thus not worthy of my time and money.

  45. 45

    @dmsilev: I did and NYT is wrong, the person behind the lawsuit is not a member of a fringe organization at all but an organization related to the fascist RSS, the outfit behind the right wing Bharatiya Janata Party (BJP) which will most likely emerge as the biggest party in the parliament after the elections this summer.

  46. 46
    Trollhattan says:

    In unrelated news, Tom “Kristallnacht” Perkins has a great idea: no voting if you don’t pay any taxes. Presumably, Herr Perkins has an underling do his shopping and is unaware of the tax applied to every purchase made in those tony San Francisco shops and restaurants, as well as the non-tony so popular with the riff-raff.

    Also, too, what does Number One Celebrity Danielle Steele think? How many votes does she get?

    http://nymag.com/daily/intelli.....nacht.html

  47. 47
    Gex says:

    What makes no sense to me is that the kinds of Christians who want these laws (to be able to refuse to serve gays) are also the kinds of Christians who believe there is no such thing as gay people. Just straight people who sin. Why do they get to have it both ways? They are arguing for the right to ban a class of people they otherwise argue does not even exist. Unless two gay people are actively fucking as they enter the establishment or the cop shows up or their doctor’s appointment starts, aren’t they just straight people who sin?

  48. 48
    Ash Can says:

    It’s all in good fun, at least until Fat Tony gets his anger on and ruptures a tube.

    At which point it becomes hilarious.

  49. 49
    Suffern ACE says:

    @schrodinger’s cat: It is indeed a troubling change for that country and I’m not very hopeful about that. The last time I was in India, there were riots all over Assam. The Indian English Press have a lot of right wingers who would fit right into the conservative pundit role in our country, looking at the riots as a failure of multiculturalism imposed by the secularist liberal fascists. However, they never quite get around to saying what their alternative is. If the people in a village are going to burn down their neighbors’ house because some boy from a different ethnic group looked at some girl and she winked back, what exactly do they want the state to do? Arrest the boy? I’m guessing that is exactly what they intend to do. There is little recognitition in that camp everybody has to live somewhere. If you’re a member of one of the many ethnic groups that have been displaced over the 4,000 years of Indian history and aren’t living where you “belong”, you’re kind of out of luck in those politics.

  50. 50

    Thread needs some love, since it is Valentine’s Day after all.

  51. 51
    catclub says:

    @Trollhattan: He is just trolling for attention. Effectively.

  52. 52
    Omnes Omnibus says:

    @beergoggles: That is rather unfair to Sotomayor. Any evidence to support it aside from a purely procedural grant of temporary stay in the Utah (?) case?

  53. 53
    mdblanche says:

    @NotMax: And do you know what senator recommended he appoint Heyburn? That’s right, Mitch McConnell.

    @Belafon: On the other hand, I’m not sure this is what the majority meant to happen either.

  54. 54

    @Suffern ACE: Gandhi’s assassin Nathuram Godse used to be a member of the RSS. Some of the blame also has to lie at the feet of the ruling Congress party and their incompetent dynastic rule.
    Satanic Verses was first banned in India by the then Rajiv Gandhi administration almost 25 years ago.

  55. 55
    indycat32 says:

    @Amir Khalid: Indiana has proposed a constitutional amendment banning gay marriage. To amend our constitution the proposed change must pass the legislature in two consecutive sessions and then it goes on the ballot. But they changed the wording of the proposed amendment in this session so it starts all over again. The earliest it could make the ballot is 2016. The consensus of opinion is that the legislature is hoping SCOTUS hands down a decision before then to make the whole thing moot.

  56. 56
    Ash Can says:

    @Mnemosyne: In beergoggles’ defense, it doesn’t take out-and-out prejudice to think that way, just fear based on what the Church leadership has said and done over recent years. And I say that as a Catholic myself.

    Having said that, though, that fear regarding Sotomayor really does come out of the blue. She hasn’t let her religion get in the way of her work thus far; there’s no reason to think it will start to do that now.

  57. 57
    Jeffro says:

    OT but after reading this:
    http://talkingpointsmemo.com/l.....ican_party

    and this:
    http://www.salon.com/2014/02/1.....king_ruin/

    it finally hit me…this probably is it for the Republican Party as we know it. It has obviously been going on since 2009, in slow motion, but between Ted Cruz’s and Rand Paul’s insanity/massive egos, they really are going to go for it in 2016 and in the process will most likely alienate whatever last reasonable people still vote for the GOP.

  58. 58
    Omnes Omnibus says:

    @Gex: they want to punish “sinners.” If being gay is choice and it is also a sin, they get to feel righteous while acting hateful.

  59. 59

    @Jeffro: If they are still voting Republican after 8 years of Dubya and the hatefest of the last 5 years how are they sane?

  60. 60
    Omnes Omnibus says:

    @Sly: I would call Douglas the most liberal justice. I would call Brennan the most effective liberal justice. I would also them my two favorite justices. Douglas as the standard bearer and Brennan as the guy who made things happen.

  61. 61
    Punchy says:

    their only basis is that some random goatherder thought his god wanted to have a chat about the evils of shrimp, boils and bumsex

    Think how better this world would be if he instead opined on bums, boils, and shrimp-sex.

  62. 62
    mdblanche says:

    @Ash Can: I believe we are only one photo of Anthony Kennedy wearing short shorts at the San Francisco pride parade away from a Democratic majority Supreme Court.

    @schrodinger’s cat:

    Upholding colonial era laws about homosexuality and banning books is just the beginning.

    What a bunch of Macaulayites.

  63. 63
    Ash Can says:

    @Jeffro: When I look at all the love for Vladimir Putin on the right wing, it doesn’t take much of a stretch of the imagination to envision how quickly and thoroughly Reagan would lose his shit over it if he were alive to see it. It makes me think that this is Reagan’s karma for doing so much to propel the right wing/GOP in the direction to where it is now — he has to look down (or up) from wherever he is now and see the real fruits of his labor.

  64. 64
    beltane says:

    @schrodinger’s cat: This is why I always make it a point to correct people when they claim that only the three monotheistic religions produce crazy people and that Hinduism and Buddhism are free from this tendency towards fanaticism.

  65. 65

    @mdblanche: Funny you should use that word since it is insult of choice, of the minions of Hindu right. They call anyone who dares to question their party’s orthodoxy, McCaulyite, another favorite is psuedo secular.

  66. 66
    Ash Can says:

    @Punchy: Shrimp-boils, sex, and bums? Count me in. I’ll bring the Old Bay seasoning.

  67. 67
    Omnes Omnibus says:

    @jl: because, by explicitly adopting and citing his interpretation of the majority opinion and then building upon it, judges make it virtually impossible for Scalia to try to say anything else when the case hits the Supreme Court. It would effectively nail an ethical justice to the wall on the issue. With Scalia, it will merely serve expose further his intellectual bankruptcy.

  68. 68
    NotMax says:

    @Omnes Omnibus

    Gotta give a shout-out to Thurgood Marshall.

  69. 69
    mdblanche says:

    @schrodinger’s cat: I learned that word from you, yesterday. ;)

  70. 70

    @beltane: They are as representative of Hindus as the religious right here is of Christians. The fringy loud elements are using religion as a cover to advance their retrograde agenda.
    ETA: Traditional Hindus can be orthodox like my hubcat’s fambly but political Hindutva is different virulent strain, which revels in hating the other, especially Islam.

  71. 71
    Gene108 says:

    @beltane:

    Buddhism and Hinduism do not have the missionary zeal of Christianity and Islam, but produce their share of conservative nut jobs, ie they do not go out of there way looking for converts and thus do not get into something like the Thirty Years War or Islamic violence against conquered people, who do not convert.

    Sri Lanka, mostly Buddhist, is having a nativist backlash to the spread of Islam there.

    Very few Budhhists adhere to the Dalai Lama, though his flavor of Buddhism is what the West thinks about that religion.

  72. 72
    beltane says:

    @schrodinger’s cat: An authoritarian loon is an authoritarian loon no matter what religion or culture produced them. I’m guessing that the hardcore Hindu nuts make up about 27% of India’s population.

  73. 73
    Omnes Omnibus says:

    @NotMax: I don’t think Marshall was ever on the wrong side of a vote on the Court. He just didn’t write as many seminal opinions on the Court as the other two. His pre-Court work gives him much of his stature in my view.

  74. 74

    @beltane:

    An authoritarian loon is an authoritarian loon no matter what religion or culture produced them

    True. The point I was making is that not all religious Hindus support them. Hindutva is more political movement than a religious one. The pockets of support for the BJP are mainly in the Hindi heartland and western India.

  75. 75

    @Gene108: True but the zeal of Hindutva advocates has been responsible for many riots, especially since the late 80s onwards.

  76. 76
    Gex says:

    @Omnes Omnibus: My point is that the law that is being passed doesn’t actually make it legal for them to refuse to serve anyone according to their own belief system, because there are no gay people. The law doesn’t make it legal to refuse to serve sinners. It makes it legal to refuse to serve gay people.

  77. 77
    Gene108 says:

    @dmsilev:

    India has banned movies and books it feels are offensive and would offend enough people start a riot / agitation.

    This does not mean freedom of expression is horribly restricted, as seen by any number of public protests, but I think it is sort of like US obscenity laws, where the standard for what is obscene is relative to the community; and India is a far more prudish society than the USA.

    On the bright side the, per the article you linked, the author might make some decent money off the noteriety with way above expected sales.

  78. 78
    Joey Maloney says:

    @NotMax: It’s his Mafia name. It’s a sign of respect. Or at least fear. Or maybe disgust.

    …sorry, I’ll come in again.

  79. 79
    Jebediah, RBG says:

    @NotMax:

    First time was willing to gloss over and let it slide, but the second time repetitious use as a pejorative prompts one to ask what being fat (or not being fat, for that matter) has to do with anything under discussion?

    I may have been misinterpreting it all along, but I thought the point was that “Fat Tony” sounds like a Mob nickname, and thus emphasizes Scalia’s status as a scumbag.

  80. 80
    Omnes Omnibus says:

    @Gex: I agree with you. I was just trying to replicate what I believe is their “logic.”

    @Jebediah, RBG: Fat Tony is the mob boss on The Simpsons.

  81. 81
    🎂 Martin says:

    @NotMax: ‘Fat Tony’ is a pretty widely used nickname for Scalia for at least the last decade. Not my invention.

  82. 82

    @Gene108:

    India has banned movies and books it feels are offensive and would offend enough people start a riot / agitation.

    A stupid trend started by Rajiv Gandhi by preemptively banning Satanic Verses. India not Iran was the first country to ban that book.

  83. 83
    Gex says:

    @Omnes Omnibus: We usually are in agreement. I have long thought that they hang on to this one sin above all others because it is the one they aren’t tempted to commit. They get perfect marks for refraining from doing something they don’t want to do. Everything else in Leviticus that they do like to do got liberalized over the years.

    Like God is impressed that they don’t do something they don’t want to do. It seems pretty insulting to their deity to think that they can skate by like this.

  84. 84
    Cermet says:

    The bottom line is what gives these rightwing dumb ass’s the right to refuse people the right to marry? What harm does it do to anyone?
    Zero; these are vile people trying to tell everyone that they must live according to their twisted and pointless imposed morality.

  85. 85
    🎂 Martin says:

    @jl:

    Scalia thinks the majority are in the closet, or what?

    He thinks the majority wants to overturn gay marriage directly, but lacking a vehicle to do that have instead laid a path to that end that lower court judges will find difficult to avoid. He’s accusing them of being activists – of producing an outcome that was outside the scope of the original case.

    I don’t disagree with his assessment of the tactic, but he’s advancing an activist argument himself – that DOMA should have been decided differently because he doesn’t agree with the other (inevitable) outcome. Basically, the cost of making the right decision is too high for him. To which I say, tough shit.

  86. 86

    @Cermet:

    these are vile people trying to tell everyone that they must live according to their twisted and pointless imposed morality.

    Right wing nutcases world over share that philosophy.

  87. 87
    aimai says:

    @dmsilev: Siva and Sakti Preserve us! How on earth do you argue that any account of Hinduism can have “errors”–Hinduism is so old, so complex, and so changeable that there’s nothing that hasn’t been true of some participant, at some point in time.

  88. 88
    kc says:

    @dmsilev:

    They’ve changed the headline, but this TPM story from this morning used to have the lead “Gay-rights warrior Scalia claims another victory”.

    Hahaha, sweet!

  89. 89
    Ash Can says:

    @schrodinger’s cat:

    which revels in hating the other, especially Islam.

    Oh wonderful. I can’t wait for the bigots here to start lionizing the Indian leaders and whining about why we can’t do that here when mosques over there get firebombed and Muslims get lynched.

  90. 90
    beltane says:

    @Ash Can: It is similar to the way many on the far-right have embraced the Israeili far-right, not because they like Jews but because they support anyone they believe is at war with Muslims.

  91. 91
    jibeaux says:

    When talking to people unswayed by constitutional or legal arguments, I like to sometimes just mention my 87 year old Catholic grandma who’s all up into everybody’s business. And who doesn’t think it’s her business who grown people live with or marry. If she doesn’t care, why exactly should the government care?

    There was an annoying FB conversation I witnessed in which a presumable polygamist or polyamorist or whatever was very peeved that the marriage equality movement had not fought for his situation as well. My thoughts were basically, “yeah, ’cause they wanted to win,” but hers were more along the lines of “isn’t that your struggle to fight and not just piggyback on someone else’s?”

  92. 92
    Gene108 says:

    @aimai:

    From the article linked, the book seems to make point that Hinduism was more about sexy-time than it is now. India is prudish, so that thesis probably irritated some folks.

    What the “good” folks who brought the lawsuit fail to grasp is they have given the author far more noteriety than her work would otherwise receive; so instead of sitting in obscurity on some academic bookseller shelf, people are now ordering it on droves.

    @schrodinger’s cat:

    I have a feeling banning works goes back further, but was probably not done with as much fanfare.

    @schrodinger’s cat:

    Yeah, I do not know why that had to happen to create a national opposition party to Congress. The BJP did not govern much differently from Congress the last time they were in power. I really do not see the purpose of keeping up with the religious stuff.

    If Modi becomes PM it will be based on the hope the economic development in Gujarat can be brought to the whole country and not because of adherence to Hinduatva.

  93. 93
    Poopyman says:

    @NotMax: Relates Scalia to the resident Mafia capo of The Simpson’s, “Fat Tony” D’Amico. That’s how it started.

  94. 94

    @Gene108:

    I have a feeling banning works goes back further, but was probably not done with as much fanfare.

    Possibly. This is anecdata but Indian fee-fees are very tender and delicate and take umbrage to any and everything.

  95. 95
    Cermet says:

    @jibeaux: There is a far simpler legal fact that prevents polygamist (et al) from marrying – its called biology; humans have a sex ratio of 1:1 making any type of plural marriage an extreme hardship on the society – ask Islam and what happens when large numbers of one sex (especially male teens) are denied marriage. Even Russia after WW II had issues since so many males were lost to the population. India is also in for a terrible time thanks to killing off so many baby girls. That issue is even now starting to create problems of social order.
    There is a reason such countries (that allow this practice) always require very brutal governments to hold the people in check by terror.

  96. 96
    lockewasright says:

    @NotMax: Papa Boosh = Bush the literate.

  97. 97
    Gene108 says:

    @Ash Can:

    Muslims aren’t blowing shit up here like they are in India.

    The threat of Pakistan either infiltrating or funding programs, in this country, to train up Muslim kids to become terrorists is pretty remote; in India it is a real threat that fuels a cycle of anti-Islamic views.

  98. 98
    The Other Chuck says:

    @dmsilev:

    They’ve changed the headline, but this TPM story from this morning used to have the lead “Gay-rights warrior Scalia claims another victory”. Points for trolling…

    Lede. Lead is the stuff that comes out of a linotype machine.

  99. 99

    @Gene108: I was in Bombay, India after the Babri-Masjid Ram Janmabhoomi riots in Bombay (still the official name then). The goons of the Hindu right burned and terrorized the city for days, targeting not only Muslim areas but Muslim owned businesses in Hindu dominated areas. The rioting only stopped after the Indian army was called and a curfew declared.

  100. 100
    Jebediah, RBG says:

    @Omnes Omnibus:

    Fat Tony is the mob boss on The Simpsons.

    Yes. I don’t myself know whether or not he is why people call Scalia “Fat Tony” or if it is just because it sounds Mafia-ish, so I left him out. Personally, I think The Simpson’s character has considerably more decency.

    ETA: Poopyman at 93 says they are related, too. Good enough for me.

  101. 101
    The Other Chuck says:

    @beltane:

    Hinduism and Buddhism are free from this tendency towards fanaticism.

    When Buddhists had political power in some countries, they too tended to outlaw everything they didn’t like. The beliefs play a part but ultimately it’s about the power.

    (Sorry for the out of context quote, I realize it’s the opposite of your position).

  102. 102
    Roger Moore says:

    @some guy:

    how many times will we need to repeat this so even the dim-witted will understand that Gay rights are human rights?

    Until they understand the “human rights” part.

  103. 103
    Suffern ACE says:

    @Gene108: Yes, because when the Indian Muslims express themselves violently, it must be because of outside meddling from that country that should not be named. ;-)

  104. 104
    Jay in Oregon says:

    @Amir Khalid:
    Oregon’s constitution was amended in 2004 to disallow performing of same-sex marriages, but the LGBT advocacy group Basic Rights Oregon is circulating petitions to get a ballot measure going for November that will undo that amendment.

    There is a lawsuit pending that challenges the 2004 amendment, with oral arguments scheduled to begin in April of this year. And in October, 2013 it was determined that same-sex marriages performed in other states must be legally recognized in Oregon.
    .

  105. 105
    The Other Chuck says:

    @Cermet: That’s a fairly big-picture view on multiple marriages, but I suppose it’s a real thing in some countries. I think the more immediate concern is that it’s an institution largely about shared property, and when you’ve got one man with many wives, the property relationship is always uneven and exploitative, to the point where the women themselves are chattel property.

    Multiple marriages where there’s an equal number of pairs (allowing for same-sex relationships) probably has a perfectly fine basis, but I think the dynamics there also allow for too much concentration of power and resulting inequality, which makes me hesitant to support it as a marriage institution. Frankly the whole damn institution is pretty archaic, but if we’re going to have it, we may as well keep it in pairs for now.

  106. 106
    jonas says:

    This precisely what sunk the defense in the Prop 8 lawsuit in California. The judge made them argue why, exactly, it was in the state’s interest to keep two men or two women who loved each other from marrying, and they really couldn’t come up with anything other than just sort of looking down at their shoes and quoting Bible verses. The state may have an interest in promoting marriage, but there are no rational arguments for why same-sex couples shouldn’t be included that don’t ultimately derive from bigotry, just as there were no arguments for why interracial couples shouldn’t be included that didn’t ultimately derive from bigotry.

    They. Got. Nuthin.

  107. 107

    @Suffern ACE: Just like many southerners haven’t still accepted their loss in the Civil War. Many of the hard right Hindus in India haven’t accepted the partition of India and still yearn for an undivided India. They also believe that India is a Hindu Nation.

    ETA: All talk of economic reform aside the PM candidate Modi is as hard core as they come.

  108. 108
    NonyNony says:

    @beergoggles:

    On one hand I think it helps prove animus to get it struck down even faster. On the other, I’m just worried the catholics (*cough* Sotomayor) on the court are gonna think it’s ok to do it because religion.

    You do realize that the majority of Roman Catholic laity in the US support gay marriage, right? Nevermind what the hierarchy wants them to believe – look at what the laity actually believe and realize that Sotomayor could be right in line with the majority of US Catholics and be significantly to the left of the Democratic Party on a lot of issues. Including abortion rights (Did you know that when polled, typically more than 50% of Catholics believe that abortion should be legal in most cases, and that in the general US population it’s pretty much the same? No? Most people don’t because that’ doesn’t “fit the narrative” about US Catholics).

    Here’s a linky from last year. It’s a Qunnipiac poll, but it’s in line with pretty much all polling on this issue of American Catholics. American Catholics support gay marriage 60/30, which is even better than the general support across the general US population (as has been generally true in the polling on this issue for years now), and even among “devout” Catholics who attend services at least weekly, you end up with a majority in favor of it.

    I understand why people are afraid of the “Catholic faction” on the Court – because there’s this belief that the Roman Church is some kind of unstoppable juggernaut in the eyes of its members. It is not – a good 2/3 of the Catholic laity think that the Church hierarchy is full of shit when it comes to RUNNING THE GODDAMN CHURCH ITSELF, let alone when they start to stick their noses into politics. That last 1/3? Those are the conservative Catholics, and yeah – you should be worried about them. Not because they’re Catholic, but because they’re conservative. And in this country if you willingly identify yourself as a conservative anything these days you must be nuts.

    (Full disclosure – raised Catholic, now an atheist. But there’s no need to hate on Catholics – as a group they’re significantly more liberal than most of the other religious groups in this country.)

  109. 109
    MattR says:

    @jibeaux:@The Other Chuck: The other thing is that our legal system is already set up to deal with a two person marriage. Changing things from a man and woman to two men or two women doesn’t require altering the basic legal framework of marriage. You just have to change a few pronouns and replace “husband” and “wife” with “spouse”. But even if you throw out all the potential social issues of multiple marriages, adding a third person into the mix adds all sorts of legal complexities that would have to be addressed.

  110. 110
    beergoggles says:

    @NonyNony: There’s plenty of people who’ve brought up my mention of Sotomayor on this and the only thing I have to go on is that she imposed a stay on the marriages in Utah.

  111. 111
    boatboy_srq says:

    @Roger Moore: Actually I think we have to wait for the Reichwing – especially the FundiEvangelicals – to understand the “human” part first, before we can get to the “rights” part.

  112. 112
    JoyfulA says:

    @aimai: I’ve copyedited many religion books for academic presses, and it seems to me that modern Hinduism has more variations than modern Christianity.

  113. 113
    Omnes Omnibus says:

    @beergoggles: As multiple people have noted, it was a purely procedural matter. I doubt that any justice would have done differently.

  114. 114
    catclub says:

    @schrodinger’s cat: Are those the riots that are the backdrop/childhood in Slumdog Millionaire?

  115. 115
    Roger Moore says:

    @indycat32:

    To amend our constitution the proposed change must pass the legislature in two consecutive sessions and then it goes on the ballot. But they changed the wording of the proposed amendment in this session so it starts all over again.

    You see a lot of that kind of thing from Republicans trying to satisfy the Talibangelicals. They know perfectly well that their proposals are crazy and unpopular with the general public but very popular with the people they need to please to win the primary, so they make wild proposals that will fail to pass or get shot down on obvious constitutional grounds, or they deliberately make procedural mistakes that delay or invalidate the stuff they do. That gives them something they can show to the crazies while still claiming no harm, no foul with the general public.

  116. 116
    jonas says:

    @MattR: Just one example: a man is married to two women. He is critically injured in a car accident and, without having made an end-of-life directive, Wife 1 wants to give the doctors the ok to turn off life support. Wife 2 is adamantly opposed and wants to continue life-sustaining care. What do you do?

  117. 117

    @catclub: Yes. See also, Mani Rathnam’s Bombay. Although, the Rathnam movie is a sanitized version of what really happened.

  118. 118
    Gene108 says:

    @Suffern ACE:

    Fear of Muslims bombing stuff is real in India.

    Pakistan’s officially gives “moral support” – but officially no material support – to terrorist groups that have been operating in India for the past 25 years, though most folks figure the ISI has a role in running these groups.

    @schrodinger’s cat:

    Must have been scary being in Bombay during or just after the riots.

    @schrodinger’s cat:

    I think the more moderate view of India as a Hindu Nation, and its appeal, is the notion Hindus have ceded more in the name of a secular religion than other faiths, especially Islam.

    For example, polygamy (and polyandry, though less common) are not expressly prohibited in Hinduism, but to be a secular nation Hindus had to accept monogamy as the law of the land, whereas Mudlims can still have four wives.

    There are other grouses, but for whatever reason the above example gets mentioned more.

  119. 119
    Mnemosyne says:

    @MattR:

    But even if you throw out all the potential social issues of multiple marriages, adding a third person into the mix adds all sorts of legal complexities that would have to be addressed.

    As I pointed out last time the question came up, countries that currently allow polygamy solve the legal problems with patriarchy. If a man with two wives is in a car accident, his nearest male relative makes the decisions, not his wives. If there is a divorce, the woman doesn’t have anything close to the rights to property and child custody that a woman in a US pair marriage has.

    People who want polyamorous marriages to be legally recognized are going to need to figure out how to make the legalities work without simply saying, But other cultures have them and they work fine! They work in other cultures because they are inherently unequal.

  120. 120
    Omnes Omnibus says:

    @jonas: Arm wrestle. Then, of course, if the machines are turned off, what is the legal relationship between the two women? If there are young children, who is responsible for them? And so on. These questions could be resolved, but they are far more complex than two person marriages.

  121. 121
    beergoggles says:

    @Gene108: Sri Lankan buddhism is basically the libertarian version of buddhism – the IGMFY kind. Coupled with their past pogroms against minorities and recent genocide of northern ethnic tamils, I wouldn’t exactly call buddhism a peaceable religion either.

    Stick any of these peaceable religious people in the majority in a country and the crazies rise to the top supported by the so called ‘moderates’ – kind of like the current republicans. This is why I dislike the moderates of majority religions – because they are apathetic enough to let the crazies do evil in their name without protesting those crazies every step of the way. Instead they sit around and act offended and protest that ‘they’re not all like that’…

  122. 122
    beergoggles says:

    @Omnes Omnibus: I was under the impression if she followed procedure, she would have had the lower courts address the issue of a stay after the opponents finally filed the correct paperwork.

  123. 123
    boatboy_srq says:

    @Roger Moore:

    they make wild proposals that will fail to pass or get shot down on obvious constitutional grounds

    Except that with the rise of the Teahad, particularly in state legislatures, the “fail to pass” assumption is no longer at all certain, so they’re left with the “shot down on obvious constitutional grounds” backstop – and with events like the recent effort to recall judges in Iowa, that’s hardly going to remain certain until it reaches a circuit court, either.

  124. 124

    @Gene108: I was never in any physical danger myself, but yes it was scary and the police just acted as bystanders while the city burned day after day.
    I am not a fan of Bush but he sent the right message by going to the mosque in DC, after the towers came down, that fateful day in September.

  125. 125
    Omnes Omnibus says:

    @beergoggles: Short answer: The Court as whole granted the stay – without a dissent.

    For the longer answer, take a look at Lyle Denniston’s piece on SCOTUSblog from 1/6/2014. Unfortunately, I can’t link from my phone.

  126. 126
    Cermet says:

    @jonas: Cut him in two? Right? That is whaaaaat the old testament would suggest … .

    Again, all other points are interesting but biology and the mess that exists in countries that allow multiple spouses proves it does not work. That is all one needs to prevent it – give scientific facts (biology) and legal reasons (the disaster in countries that allow it) that shows it is NOT in the interest of society to allow it. That is why the gay ban failed.

  127. 127
    Mnemosyne says:

    @Omnes Omnibus:

    Here’s the link. Short version, the full Court issued the stay, not Sotomayor.

  128. 128
    burnspbesq says:

    @Gex:

    What makes no sense to me

    Looking for logic where there is none? At some point, doesn’t that become self-defeating?

  129. 129
    beergoggles says:

    @Mnemosyne: Thanks. That makes me feel better about her.

  130. 130
    Gex says:

    @burnspbesq: Fair enough. Hopefully their own views, that there is no such thing as gay people, will be thrown into their faces when they start trying to take advantage of this law.

  131. 131

    I can’t wait for the bigots here to start lionizing the Indian leaders and whining about why we can’t do that here when mosques over there get firebombed and Muslims get lynched.

    Strangely, this is happening in Burma, in the region bordering Bangladesh. There is an ethnic minority, the Rohinga, who are being threatened by Buddhist mobs. (Yes, you read that right.)

    So a bit of digging indicates that a) Sri Lankan Budhhist mobs lynching Muslims is a thing and b) the government of Cambodia that preceded the Khmer Rouge let a Buddhist fundamentalist run the military. This resulted in absurdities including the air force being surrounded with magical blessed dust of some kind just before the fall of Phnom Penh.

    My takeaway: Jesus, religion makes people nuts.

  132. 132
    Barney says:

    Tony Scalia is no Cassandra. Cassandra was always right, but not believed. Only in his own mind, perhaps.

  133. 133
    Jeffro says:

    @Ash Can: I think they’re truly getting down to the 27%: Tea Party crazies propped up by billionaire bucks and not much else. I just have this feeling that even the big money/business wing of the GOP – significant numbers of them, anyway – are going to look at Hillary or whomever vs Ted Cruz and his wreck-the-global-economy b.s., and keep slipping away in the dead of night.

    Obama was the ‘adult in the room’ that pulled my lifer-GOP dad away from McCain & Palin; a couple more cycles of that and we’ll have pulled away even more long-time R voters.

  134. 134
    NotMax says:

    @🎂 Martin

    So continuance of derogatory terminology is just groovy? Hope you brought enough animus to share with the whole class.

    Having read the other responses above, I amend my previous statement. It is insulting and offensive to both fat people and to anyone with an Italian surname.

    Originating in The Simpsons doesn’t make that any less so. Using Mafia stereotypes as a role model is ludicrous. Can’t but help thinking back to the “Black Elmo” episode of All In the Family wherein similar offense was more blatantly laid on the table and rightfully eviscerated.

    (steps down from soapbox)

  135. 135
    Matt McIrvin says:

    @Belafon: Wasn’t it actually his dissent in the case that struck down sodomy laws? Lawrence v. Texas?

    He wanted sodomy to remain illegal because if it wasn’t it would lead inevitably down the slippery slope to same-sex marriage. And he was apparently right. Only a reasonable answer to why this is a bad thing is missing.

  136. 136
    Paul Weimer says:

    @Matt McIrvin:

    There is an answer, but its reasonability is open for debate. I don’t buy it, myself:

    He thinks he’s *right*. To him, Sodomy is a sin and so it must be stopped. Same Sex marriage is a sin. Its not a matter of equal protections or anything else. It’s “just wrong” and society must be protected from its corrosive effects. So, make sodomy illegal, keep same sex marriage illegal and that destruction of society is postponed or avoided.

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