Today in Christian "Martyrdom"

I haven't commented on any of Tony Perkins' outrages lately, but this one is too good to pass up. Via Joe.My.God.:

Pasquotank County is hard to pronounce -- but it's not nearly as difficult as pronouncing two women 'wife and wife.' That's how North Carolina Magistrate Gary Littleton felt when a same-sex couple asked him to 'marry' them at a courthouse this week. Unfortunately for Littleton, his constitutional rights are of no concern to local liberals, who insist that the judge should have to check his religious beliefs at the workplace door. Like the overwhelming majority of Tar Heels, Littleton probably voted to define marriage as the union of a man and woman in 2012. Now, two years later, he doesn't believe that a handful of unelected judges should be able to override his vote -- and the vote of 1,317,177 others. Yesterday, the county met to determine if Littleton could face criminal charges for exercising the freedom the First Amendment guarantees. While he and other clerks await their fate, a federal judge has given Speaker of the North Carolina House, Thom Tillis, the right to defend his state's marriage amendment in court. An appeal could kick the issue back to the Fourth Circuit Court of Appeals, which struck down Virginia's law.

Let's look at a couple of high points:

Unfortunately for Littleton, his constitutional rights are of no concern to local liberals, who insist that the judge should have to check his religious beliefs at the workplace door.

Actually, it's the Constitution that insists that a judge should have to check his religious beliefs at the workplace door. It's called the Establishment Clause, and it forbids the imposition of sectarian beliefs in civil law.

Like the overwhelming majority of Tar Heels, Littleton probably voted to define marriage as the union of a man and woman in 2012.

Actually, it was about 22% of registered voters who voted that way, in a primary election in which there was no Democratic contest. (Not that the Republican-dominated legislature was trying to stack the deck or anything like that.) I couldn't find population figures for 2012, but the 2010 census counted just over 9.5 million; the estimate for 2013 was about 9,850,000. Let's call it 9.7 million in 2012, and then take Perkins' count of the vote in favor of Amendment One, about 1.3 million. That doesn't really strike me as an overwhelming majority of Tar Heels.

Now, two years later, he doesn't believe that a handful of unelected judges should be able to override his vote. . . .

No matter what this newly-minted martyr believes, it is the case that a handful of "unelected" judges (and can you imagine the mess our federal court system would be if judges were elected?) are absolutely able to override his vote when his vote violates individual rights guaranteed under the Constitution of the United States. That's what the courts do.

And Horrors! The Fourth Circuit might uphold a decision it has already made.

Once again, Tony Perkins gets the Tony Perkins Award for mendacity under fire.

A footnote: Another North Carolina magistrate had the integrity to resign rather than perform same-sex marriages. He's a bigot, but even bigots can have some class, I guess.

Now You Know They've Gone Too Far

The teabaggers in Congress, that is. When our corporatist Chief Justice starts screaming about budget cuts -- well, that's extreme.

The impact of the sequester was more significant on the courts than elsewhere in the government, because virtually all of their core functions are constitutionally and statutorily required. Unlike most Executive Branch agencies, the courts do not have discretionary programs they can eliminate or postpone in response to budget cuts. The courts must resolve all criminal, civil, and bankruptcy cases that fall within their jurisdiction, often under tight time constraints. And because many of the Judiciary’s expenditures, such as rent and judicial salaries, must be paid regardless of sequestration, the five percent cut that was intended to apply “across-the-board” translated into even larger cuts in discretionary components of the Judiciary’s budget. . . .

Sequestration cuts have affected court operations across the spectrum. There are fewer court clerks to process new civil and bankruptcy cases, slowing the intake procedure and propagating delays throughout the litigation process. There are fewer probation and pretrial services officers to protect the public from defendants awaiting trial and from offenders following their incarceration and release into the community. There are fewer public defenders available to vindicate the Constitution’s guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike. There is less funding for security guards at federal courthouses, placing judges, court personnel, and the public at greater risk of harm.

It's sort of a boot-licking document, overall -- Roberts obviously knows his audience -- but it still points up the real-life effects of Congress' ideologically-driven budget cuts.

Of course, Republicans don't like a free and independent judiciary -- it doesn't always give them the decisions they want. So we'll see what effect Roberts' report has.

Via The New Civil Rights Movement.

Of Note

First, a couple of good posts by David Link at Independent Gay Forum, one about the Prop 8 trial and the arguments the supporters have at their disposal, and one about religion and sex.

And Timothy Kincaid has one at BTB on the real reason the Church opposes gay marriage.

Looking at these again, they really do all tie together. Kincaid notes an article by Deacon Keith Fournier in Catholic Online. The core of Kincaid's piece is the demand that heterosexual relationships continue to receive favored status. Quoting Fournier:

They want the State to treat homosexual partnerships as the equivalent of marriage, thereby denying real marriage and the family founded upon it, the favored legal place it has long held as the first society.

That is telling enough, but I want to point out the very first sentence of Fournier's sadly slanted commentary on the Jenkins/Miler custody case:

This tragic custody case sets up what is called a conflict of laws issue, pitting the law of one State against another as a part of a homosexual advocacy agenda.

Right off the bat, I'd like to point out that this is not the situation at all: the court in Virginia has agreed to abide by the decisions of the Vermont court in this case, which at this point is that the child, Isabella, should be in the sole custody of Janet Jenkins. Lisa Miller has taken Isabella and disappeared. This piece is so scurrilous that I was moved to leave a comment, in which I was unfortunately only able to scrape the surface of the cesspool. The gist is that this Catholic deacon is coming out strongly in support of a woman who shows no moral compass herself, has reneged on her contractual obligations and disobeyed a court order to observe them. This hit-man thinks this is praiseworthy behavior.

The core of this, of course, is anti-gay bias. This is brought sharply to light by Link's second post, which has a very entertaining section on how acceptance of gays as real people is an assault on Christianity:

The CADC insists that the mere presence of openly gay people is not just wrong or even intolerable, but an attack on Christianity. And the fact that other Christian religions accept openly gay people is, itself, a further affront, an exacerbating act of prejudice and defamation against the non-accepting.

The key issue, of course, is same-sex marriage. I've been over the "arguments" (see -- we can use quotes, too) against, and Link makes an important point on this in regard to the Prop 8 trial:

But the rejection of a constitutional principle for a very small minority, a principle that is generally applicable to everyone in the majority, is not only not the solution to the problem being presented, it is, itself, the problem which the equal protection clause was supposed to address. Why would an equal protection clause be necessary if it was only there to protect the majority?

The Prop. 8 case will be addressing that question head-on, and the witnesses opposing same-sex marriage will have to present the kind of arguments that the New Jersey senators were not obligated to offer. The question is a focused one: What justification does the government have for treating same-sex couples and opposite sex couples differently in light of the fact that the federal constitution does include a provision that explicitly says all citizens should be treated equally under the law?

The fact that we have historically discriminated between those groups is not an argument. The fact that many voters have a predisposition to favor their own relationships at the expense of the minority’s is not an argument.

Finally, and most importantly, the fact that many religions believe that homosexuality is a sin is also not an argument – or at least not one the court will be able to properly assess. There are many religions and many theologians who think homosexuality is not a sin. No secular court could competently resolve that theological dispute. Nor should it. Ours are not religious courts, and the damage they would do if given the authority to decide what is sin and what is not, what God intends for us and what he (or she) does not is immeasurable.

I suggest you read all three posts, and even Deacon Fournier's screed (on an empty stomach, that one). They make some good points.

Ballistic

Trying not to go there, but it's hard when faced with stories like this one.

Aravosis makes it sound pretty awful, and it is. I do want to point out one thing though, before I go into my own diatribe:

We just got the brief from reader Lavi Soloway. It's pretty despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush's top political appointees.

It probably was. Remember, Bush not only stacked the Justice Department with ideologues, he put them all in civil service jobs before he left so they wouldn't have to resign when the new administration took office. Odds on this all comes out of a Bush holdover, or a group of them, with their own agenda, which is not going to be gay-friendly -- the reasoning has that sort of John Yoo flavor to it, after all.

However, my next bet is that Obama does nothing to repudiate this brief. Then I will go ballistic.

Prop 8 Round-Up

I decided, since the news was coming so fast and furious and I needed time to digest the Court's opinion in upholding Proposition 8, to make it this week's Friday Gay Blogging.

Building on my original post, here's the opinion.


Prop 8 Ruling -

One thing to keep in mind in this discussion, which Eugene Volokh quotes Chris Geidner as stating quite clearly:

First, this is not a ruling about whether marriage equality is correct or just. This is a ruling about whether the California Constitution allows a measure like Proposition 8 to be voted into the Constitution by the people. Even if there is some overriding federal claim that marriage equality is guaranteed by the U.S. Constitution, it was not raised by the parties here....

Here's Geidner's post in full. The bulk of it is a plea for -- I'm not sure what to call it: restraint, I guess, although I note that his call for restraint is directed toward the gay community and its allies, while the religious conservatives, much more prone to violence in pursuit of their aims (see this post by Sara Robinson [and this follow-up, which provides some much-needed (apparently) definitions], which strikes me as somewhat alarmist, but not outside the bounds of reality -- I mean, look at who our domestic terrorists have been over the past 10-20 years.). I'm tired of being told to calm down when faced with opponents who have no standards, no ethics, and no morals. (This is not name-calling: this is merely a reasonable conclusion based on recorded fact.)

Mary L. Dudziak makes the same point in her first post on the decision:

The court carved out space for the rights of same-sex couples protected in the Marriage Cases, emphasizing: "among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage - albeit significant - that has been removed by this initiative measure." (emphasis added). Taking into account the "actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws," (emphasis added), the court found Prop 8 not to be a constitutional revision.

Andrew Koppelman reaches a similar conclusion. He raises some other points that I will come back to.

Dale Carpenter raises a point in his comments that troubled me as well:

So marriage wasn't really the main issue in Marriage Cases, it was convenient shorthand. Elsewhere, the Strauss court tells us that Prop 8 has only a "limited" effect, carves a "limited exception" to the right to marry, changes the content of a right in "one specific subject area," diminishes only "one aspect" of a fundamental right, and so on. This is another way of saying that what gays lost in Prop 8 -- "marriage" -- wasn't all that important.

Read his whole post -- the contrast between the section he quotes from the decision in In re: Some Marriages and the relevant passage in Strauss vs. Horton (the official title of the new decision) is striking: after building a large portion of its reasoning on the effect of the word "marriage," the Court essentially bent over backward to say that wasn't really what it meant.

(Carpenter also notes that there is nothing in the Strauss decision that prevents the voters of California from revoking domestic partnerships by referendum -- which, I agree, would be the next logical step for the anti-gay right, if they weren't already on alert that they're going to have to go back to the Mormons for funds to defeat the next, pro-marriage referendum), but my take is, that's not going to happen.

Two thoughts on this:

First, the decision in Strauss is a disaster in terms of basic civil rights guarantees. Granted, it will have limited effect, but in California at least, it is now on the table that any well-organized, well-funded group can strip fundamental rights from a minority by the kind of campaign we saw for Prop 8: distortions, misrepresentations, and outright lies all dressed up in expensive ads with lots of air play. (Fortunately, most state constitutions are more difficult to amend. The California method is insane, but it's theirs and they're going to have to deal with it.)

Second, the reasoning vis-a-vis the word "marriage" is fairly scandalous after the effort the Court put into delineating the importance of the word to the status of the institution in Some Marriages. Let's not be fooled by this one: it's as much a political decision as a legal decision, as far as I can see. The acrobatics here remind me of nothing so much as the New York Supreme Court's decision in their marriage case, in which the reasoning was, to put it mildly, strained. It's also worth noting that the California Court is not the only one to recognize the importance of the word as an essential part of the institution.

And the Court has now said that, in California at least, separate is good enough, whether it's equal or not.

And then there are the couple whose marriages are still valid. This is going to be fun to watch. (I can't help but wonder whether the Court is hoping for a law suit that's going to bring the question back to them in a less potentially explosive form.)

There will be more on this. People are still posting about it, and I have a lot more material to go through. But I decided you do get dessert today, a totally fiery treat from Queerty:

Remember Maher Arar?

The Second Circuit has decided to rehear his case, on its own, without any action by his attorneys. Ed Brayton has this report:

This is extremely unusual. You may remember Maher Arar, the Canadian man who was arrested on a stopover at JFK airport and sent to Syria where he was tortured for nearly a year. With the help of the Center for Constitutional Rights, he sued the U.S. government. The district court dismissed the case based on the state secrets privilege, saying that it could harm national security to even hear the case. A 2nd Circuit appeals court upheld that dismissal in a 2-1 decision.

Now here comes the unexpected part: the 2nd circuit has announced that it will reconsider the case en banc, which means all the judges on the appeals court will hear it and vote on it. What makes this truly surprising is that Arar's attorney didn't ask for it; the court granted the rehearing sua sponte, on its own.

Several of the commenters on this one came to the same conclusion I did: basically, this fish (national security/state secrets) smell many day dead, and they are starting to be more than a little uneasy about it.

It's about friggin' time.