It Ain't Over 'Til It's Over

Yes, Election Day was yesterday and we still don't know who is going to be president for the next four years. Trump, of course, has claimed victory, based on the voices in his head, but they're still counting votes -- millions of mail-in ballots. For some reason, only a few states allow absentee/mail-in ballots to be counted before election day. The thinking behind that eludes me.

This is going to wind up in the courts. It's already been there, and that's going to be a big problem, now that the GOP has stacked the Supreme Court with Republican hacks. Digby has a post quoting extensively from an article by Ian Millhiser examining the legal landscape -- or at least, part of it:

Two significant legal events occurred last week that could determine whether the winner of the 2020 election actually becomes president. They could also shape American elections for years to come if the Supreme Court’s 6-3 Republican majority remains in place. The first was the confirmation of Justice Amy Coney Barrett, which not only gave Republicans a supermajority on the Supreme Court, it also most likely made Justice Brett Kavanaugh the swing vote in election cases. While Kavanaugh’s approach to election law is extremely conservative, he’s staked out a position that is slightly more moderate than the views of his most conservative colleagues Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch.

The second event is that, last Monday, just minutes before Barrett was confirmed, the Supreme Court handed down a decision that prevents ballots that arrive after Election Day in the state of Wisconsin from being counted. Kavanaugh joined that decision, and he also wrote a separate concurring opinion that endorsed a radical reading of the Constitution that would upend at least a century of established law.

Briefly, Kavanaugh signaled that he wants to give federal courts — and his Court in particular — an unprecedented new power to overrule state supreme courts and to potentially rewrite state election law. Some of the implications of this view are discussed below, but the upshot is it means that Kavanaugh appears ready to change longstanding rules that have governed elections for a very long time.

That's bad enough, but it gets worse:

There is, however, a crucial question that the Supreme Court has yet to resolve. If the courts change the rules governing an election after voters have already cast their ballots, are voters who did not comply with these new rules disenfranchised, even if they followed the rules that were in place when their ballot was cast?

Three justices, Thomas, Alito, and Gorsuch, have all claimed that voters who followed the rules that were in place when their ballot was counted can have their ballots tossed out anyway if a court later changes the rules.

ANd how long, do you suppose, before we dispense with holding elections at all, and just let the courts decide who our elected officials are going to be? American democracy -- it was fun while it lasted.

I'm Going to Say This Once

Amy Coney Barrett is a nightmare. I keep seeing headlines about how this Democratic senator called her out on something, while that one backed her into a corner, and yet another asked questions she couldn't -- or wouldn't -- answer.

It does matter. The Republican majority will vote to confirm her, she will be sworn in at the earliest opportunity, and with a majority of neo-fascists on the Court, you can kiss civil rights for anyonbe who's not a white, cis-gendered, Christian, heterosexual male good-bye.

Today's Must-Read: Color Me Flabbergasted (Updated)

Well, OK, maybe not flabbergasted, but certainly surprised. It's all over the place, but here's the most concise and complete single story I've found:

In the cascade of bad news that has marked 2020, it’s almost impossible to believe that something good could happen, and yet here we are: On Monday morning, the Supreme Court ruled that gay and trans workers are protected by Title VII of the Civil Rights Act of 1964, which prohibits firing someone on the basis of sex. The decision encompasses a number of cases, but the most prominent was that of Aimee Stephens, a trans woman from Michigan who was fired by her longtime employer, Harris Funeral Homes, because she had transitioned from living as a man to living as a woman. Sadly, Stephens did not live to see this victory — she died from kidney failure in May — but she will go down in history as the person who secured this critical right for trans people to do their jobs free of discrimination.

I wasn't really all that surprised by the ruling -- well, OK, a little bit -- but more by the 6-3 split.l If I'd thought about it, I probably would have expected Roberts to join the liberal wing of the Court -- legacy and all that -- but Gorsuch did surprise me.

The really delicious part is that the "religious" right was hoping this case would provide the wedge to start rolling back gay and trans equality -- and everyone else's rights as well:

But this victory is not just a victory for trans people. This decision, surprisingly penned by Justice Neil Gorsuch, a Trump appointee, is a potentially major setback for the religious right’s push to gut federal laws that protect all Americans from discrimination on the basis of race or sex. The right has been looking for a way to weaken the Civil Rights Act for decades now, and for the moment that mission has been thwarted.

Especially those of women:

Alliance Defending Freedom, the Christian right group that was representing Harris Funeral Home, is still pretending it was doing this to protect women.

“Redefining ‘sex’ to mean ‘gender identity’ will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts,” the group tweeted after the decision came down. “Civil rights laws that use the word ‘sex’ were put in place to protect equal opportunities for women.”

BS, to put is succinctly. You know as well as I do that ADF and its backers want women back in the kitchen with a kid hanging on each hip.

At any rate, read the whole thing, and while you're at it, check out the Salon article linked in the first paragraph above.

There's a lot of follow up, especially at Joe.My.God. Highlights are here (Tony Perkins -- not the sexy actor, the bigoted grifter); here (Joe Biden, on the plus side); h ere (Alliance Defending Freedom, the losers); and here (Heritage Foundation, bravely facing the eleventh century). There are more -- just scroll down until you find one you like.

Update: Needless to say, Franklin Graham has weighed in, with the expected wailing and rending of garments over "religious freedom":

I believe this decision erodes religious freedoms across this country. People of sincere faith who stand on God’s Word as their foundation for life should never be forced by the government to compromise their religious beliefs.

And so on and so forth.

As a matter of fact, the Court quite specifically did not address the issue. The demurrer is on page 36 of the opinion (which a PDF file that I can't copy and paste).

Graham's comments are worth reading, just as an example in the double-talk at which the "religious" right excels.

Wham! One For Our Side

It looks like the Senate hasn't managed to fill enough judgeships with Trump cultists.

The Chief Judge for the U.S. District Court for the District of Columbia Friday afternoon ordered the Department of Justice to hand over the unredacted Mueller report and underlying materials requested by the House Judiciary Committee months ago. The 75-page ruling by Judge Beryl Howell (photo) is a being called a “stunning rebuke” to the DOJ that is leaving some experts surprised and even somewhat shocked.

The ruling also destroys the fallacious argument made by President Trump and Republicans that the House impeachment inquiry is not an actual impeachment. Judge Howell says it absolutely is. Republicans, including administration officials, have refused to respond to requests by the House for documents, and even subpoenas commanding testimony, claiming because the full House did not vote on holding the impeachment inquiry it is, as some on the right claim falsely, a “witch hunt” that can be ignored.

They are wrong.

Judge Howell has successfully accomplished several things. She delivers effective explanations deriding the DOJ’s arguments, she effectively certifies the House’s impeachment inquiry, and she shows just how amateur – or inept – the Barr DOJ has become.

Twitter, or course, is all over this, and most of the commenters include quotes from the decision. Some of them are really on the nose. Here's one example, from Marcy Wheeler:

Howell goes all School House Rock on DOJ, which apparently needs a basic lesson in American history. pic.twitter.com/gP8KrzEF8U

— emptywheel (@emptywheel) October 25, 2019

It's worth reading the whole post for some of the comments on Twitter.

Barr, of course, will appeal to Trump's tame Supreme Court. It that fails, I wouldn't be a bit surprised if the regime declares that it is not bound by court decisions. That's where we're headed.

This is Probably a Must-Read

An interesting article on the future of LGBT rights -- and perhaps civil rights in general -- under the Trump Court;

There’s no denying it: efforts to protect LGBT+ persons through the federal courts suffered a substantial—perhaps devastating—setback when Justice Anthony M. Kennedy retired on June 27, 2018. The author of Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), Kennedy had long played a key role in the U.S. Supreme Court’s invalidation of laws that discriminate against gay men and lesbians. His most recent decisions in that vein (Windsor and Obergefell) were written for a five-justice majority, with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito in dissent. Kennedy’s retirement augured the emergence of a solid conservative majority, now including Justices Neil Gorsuch and Brett Kavanaugh, whose members are very likely opposed to meaningful constitutional protection for LGBT+ persons as a class. As we assess the implications of that development, here are some key questions to consider.

It's a little dense, but worth reading. Especially striking was this section:

Will the Court Undermine Antidiscrimination Laws in the Name of the First Amendment?

A holding that Title VII prohibits discrimination against LGBT people would mean a lot less if the Court subsequently held that the First Amendment immunizes anybody who describes acts of discrimination as expression or religious practice. However, in recent years, the right-leaning justices have taken worrisome steps toward imposing novel constitutional limits on antidiscrimination law.

I can't help but wonder, though, whether the Court giving carte blanche to religiously inspired bigots might also be held as establishment of religion.

We'll see how it all turns out. I'm not optimistic, unless the House grows a spine and starts impeachment proceedings against, say, "I like beer" Kavanaugh, who probably lied during his confirmation hearings.

Quote of the Week

From commenter coram nobis at Joe.My.God.:."

From former California Assembly Speaker Willie Brown's column, today:

Badda boom: A guy came up to me the other day and said, “Mr. Brown, the Brett Kavanaugh hearings have had at least one impact.

“We will never again be able to say ‘sober as a judge’ with a straight face.”

That's all, folks.

Kavanaugh/Ford: Connectng the Dots

A series of posts at Hullabaloo that pull together a lot of threads on the attempted rape accusations against Brett Kavanaugh by Christine Blasey Ford.

Start with this one from Tom Sullivan, about the beginnings of the "evil twin" defense:

The doppelganger defense that has been percolating for days appeared on Twitter yesterday, reports the Daily Beast:

A former Supreme Court clerk gave an alternate explanation for Christine Blasey Ford’s allegation against Supreme Court nominee Brett Kavanaugh in a Twitter thread. Ed Whelan, former law clerk to Justice Antonin Scalia and the president of a think tank called the Ethics and Public Policy Center, attempts to map possible locations for the party Ford described when telling her story about the alleged attempted assault. He points to a home belonging to another person whose floor plan “corresponds closely to Ford’s description” of the party house. Whelan claims Kavanaugh and the other person closely resemble each other.

Whelan et al. have set themselves up for a major defamation suit, especially since Ford squelched their ploy right at the start.

Digby looks at some of the background used in pulling the "evil twin" defense together:

That story had been teased in right-wing circles for a few days, even making it into the Washington Post opinion page when Kathleen Parker published a fatuous op-ed suggesting that Brett Kavanaugh must have an evil twin (she called it a "Kavanaugh doppelganger") who attempted to rape Christine Blasey Ford at a high school party. Most people not steeped in the right-wing fever swamps thought Parker's piece was just a bizarre fantasy, but those who are tuned in to social and professional GOP establishment circles understood that she was previewing a quasi-official alternative theory of the case.

It's obvious that the Republican leadership doesn't want the FBI investigating this, or anything else to do with Kavanaugh, but there have been death threats:

On Rachel Maddow on Wednesday Sen Hirono of Hawaii called out the death threats and intimidation of Dr. Ford as witness tampering and said the FBI should "do its job" and investigate.

Since July Senator Feinstein's office honored Dr. Ford's wishes to remain anonymous. But then the press found out who Dr. Ford was so she identified herself publicly. At that point Senator Feinstein's obligation to keep her identity secret was dropped. However, as a constituent of Feinstein, an American citizen, and a key witness in an important government decision, Feinstein still has an obligation to Dr. Ford to protect her and defend her rights.

(Emphasis in original.)

It's starting to look like they're at the point of just throwing stuff at the wall and hoping something sticks. I don't have any high hopes that this is going to derail Kavanaugh's confirmation (jokester Susan Collins notwithstanding), but if they do ram it through, I have a feeling there will be fallout in November.

Well, Kiss America Good-Bye

He couldn't have waited six months?

Supreme Court Justice Anthony Kennedy is retiring, giving President Trump and Senate Republicans an opportunity to create a solidly conservative court that could last for decades. Kennedy’s long-rumored decision to step down July 31 will touch off a titanic battle between conservatives and liberals in the nation’s capital, on the airwaves, and in states represented by key senators whose votes will be needed to confirm his successor.

Mitch McConnell, who has no integrity at all, will try to rush through a neo-fascist nominee as quickly as possible, whining about "obstructionist Democrats" if anyone objects.

All the anti-American "Christians" are licking their chops at the prospect of overturning Roe and Obergefell.

It was a nice country while it lasted.

Masterpiece Cakeshop, Finally

I am not, after all, going to do a major post on the Masterpiece Cakeshop decision. You've already got my bottom line on it, so this is just by way of providing a little detail.

The big issue is the Court's interpretation of comments by members of the Colorado Civil Rights Commission. From Towleroad, a take on that issue that echoes my own:

. . . the Court found that statements from Commissioners sitting on the Colorado Civil Rights Commission evidenced so much anti-religious bias that they denied the Christian baker a fair, impartial hearing. But those statements don’t really evidence bias. Here was the most offending statement:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

In reaction to this, the Court said, “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

But that is not at all what the Commissioner did. His comment called out using religion as a pretext for discrimination. And besides, the Commissioner is one hundred percent correct. Christianity justified the Holocaust. Religion was used to justify slavery. Religion was used to justify Jim Crow, apartheid, and laws against interracial marriage.

Ed Brayton has a good discussion of the ruling at Dispatches from the Culture Wars, and RawStory provides a history of religious freedom jurisprudence.

Of course, Tony Perkins is claiming a huge victory for "religious freedom" über alles, and Brian Brown is taking credit for the decision. Linda Harvey, who is known to have an adversarial relationship with reality, thinks this decision paves the way for getting rid of sex education in schools. But, as I've noted elsewhere, the actual facts of the ruling are not going to alter the right-wing propaganda one bit.

The justices dodged the bullet, although there would seem to be ample precedent for upholding the Colorado Civil Rights Commission's decision, not the least of which is Employment Division v. Smith, which held that there is no religious exemption from otherwise generally applicable laws -- unless, of course, one wants to present the argument that there is no compelling government interest in enforcing equal treatment for all citizens.

The Wedding Cake Decision

It's weird. My first impression is that it's right up there with Hobby Lobby and Citizens United in terms of farfetched assumptions. I'll post in some detail tomorrow, since I have an appointment this morning and there's a lot of commentary to digest.

Patience.

She's Baaack!

I guess Laura Ingraham hasn't lost enough sponsors yet, but at least she's found a different dead horse to flog:

Now let’s face it. The runaway judiciary has become in effect a new flank of the resistance. They are taking away your power. And it’s time for Congress to circumscribe the authority and the reach of these district court judges. Think about national health care policy, immigration policy, national security. These matters are all beyond the scope and understanding frankly of a district court judge.

“It’s like giving a local mayor control over U.S. foreign policy. It’s ridiculous. The tyranny especially of the district court bench has to end. And the people’s will should no longer be held hostage to the capricious whims of one ill-equipped disgruntled life tenured jurist.

Well, let's see:

"Circumscribe the authority of judges"? Congress can't -- although theoretically Congress can dissolve all district and circuit courts, but I don't see that happening.

Policy -- the courts don't deal with policy, they deal with law. Ingraham should know that -- she clerked for a Supreme Court justice (Clarence Thomas, as a matter of fact; that explains a lot). But it doesn't fit the agenda.

The "people's will" is certainly not something you're going to find the Trump regime worrying about, and it is subject to limits: the people get to elect their representatives; that's the extent of it. (Oh, and as it happens, most of "the people" are against Trump's attempts to eliminate DACA.)

The right hates the whole idea of an independent judiciary, almost as much as they hate the idea of equal treatment under the law. I'm reminded of the hysterical reaction to Obergefell, which most right-wing commentators condemned at "lawless," which I found hysterically funny -- that's officially known as an oxymoron.

So, in the final analysis, she's not only an idiot, she's a liar. Somehow, that's no surprise.

There's video at the link, if your stomach's up for it.

So Much Winning

That's us, not him:

A third federal judge has rejected the Trump administration’s justification for winding down the program protecting immigrants who came to the U.S. illegally as children.

U.S. District Court Judge John Bates said on Tuesday that the Department of Homeland Security’s legal explanation for the decision to end the Deferred Action for Childhood Arrivals program, or DACA, was too flimsy and, ultimately, unpersuasive.

“DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful,” Bates wrote in his 60-page opinion, released on Tuesday evening. “Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.”

. . .

Bates is also opening up the possibility that the Trump administration could be ordered to take new DACA applications, something no other judge has required. Bates said in his decision on Tuesday that if DHS didn’t come up with a new, better explanation for the rescission within 90 days, the entire program would be restored.

The government's argument seems to boil down to "the program was instituted by that Muslim illegal immigrant Obama."

Via Joe.My.God.

Sure, Jan. . . .

I thought Connecticut was one of those places that had gotten beyond crap like this:

Senate Republicans voted as a bloc Tuesday to deny Andrew J. McDonald confirmation as chief justice of the Connecticut Supreme Court, stopping the ascent of a political and legal trailblazer for the gay community, a factor that opponents insisted was irrelevant and supporters said could not be ignored.

It appears that Republicans in Connecticut are moving back to pounding on the social issues drum, after having soft-pedaled those issues in recent years, which has, at least in part, enabled them to gain seats in the legislature. But it looks like that may be changing:

[Sen. Len] Fasano, who left his office Friday with binders containing copies of McDonald’s cases, reviewed three in fine detail. He questioned whether McDonald had reached beyond the record to render decisions. The level of detail in Fasano’s critique drew an unusual rebuke from the governor while the debate still was under way.

“Senator Fasano’s performance today should send a chill up the spine of every sitting judge in Connecticut,” Malloy said. “His antics run afoul of the tradition and decorum our General Assembly has followed since 1636. During that long history, no legislative leader, let alone a member of the Connecticut bar, has nitpicked, parsed, and deconstructed the decisions of a sitting judge more than Senator Fasano did today.”

“It is now an undeniable fact that Andrew McDonald has been treated differently than others who came before him,” Malloy said. “It begs the question: What is different about Justice McDonald that so concerns Connecticut Republicans?”

Republicans said it was not sexual orientation.

Whether or not it's sexual orientation, it's certainly political; it doesn't appear that the Republicans have made their case against McDonald, although, from the article, they dug up every bit of dirt they could, and embellished it where necessary.

OK, so it's not about sexual orientation. It doesn't seem to be about anything else, though.

Via Joe.My.God.

They Don't Give Up

Republicans in Pennsylvania are upset that the state supreme court found their partisan gerrymandering unconstitutional:

State Republican leaders on Thursday asked the U.S. Supreme Court to block a Pennsylvania Supreme Court order to redraw the congressional district maps in the commonwealth, arguing that the state justices intruded on their turf.

“In short, the question in this case is whether the Pennsylvania Supreme Court is the Pennsylvania ‘Legislature’ under the federal Constitution, and the answer to that question is a resounding no,” lawyers for Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny) wrote in the petition to Justice Samuel A. Alito Jr.

I think it's called a "Hail Mary pass." They don't have a case:

David Gersch, a lead attorney for the voters who brought the case, called the arguments “embarrassing.” He noted that the same parties spent two months trying to defeat a parallel challenge in federal court, contending then that the issue was one for the state to decide. “Now that they have lost in the highest court of the commonwealth, the legislators turn around and say the exact opposite,” he said.

Experts questioned the validity of the GOP’s latest argument, noting that the Pennsylvania Supreme Court’s order explicitly says it is based on the state constitution. Courts have also drawn congressional maps before, including at the federal level.

I'd confess to being surprised if SCOTUS agrees to hear this one, but these days I'm not going to try to predict what they'll do.

Via Joe.My.God.

Flummoxed (Update)

I have to admit to being taken aback at this:

The U.S. Supreme Court on Monday let stand a Texas ruling that said the right to a marriage license did not entitle same-sex couples to spousal benefits under employee insurance plans.

The city of Houston had asked the high court to overturn last June’s Texas Supreme Court decision, which determined that all marriage-related matters were not decided when the U.S. Supreme Court established a right to same-sex unions in 2015, leaving room for state courts to explore the limits of gay marriage.

The federal court’s decision, issued without comment, allowed the Texas ruling to stand.

I find it hard to believe that four justices did not vote to hear this one.

Here's what I think it the big flaw in the Texas decision:

The Texas court merely said that the decision in Obergefell v. Hodges, while acknowledging the right of same-sex couples to marry, did not answer or resolve all marriage-related questions, including whether governments must provide the same benefits to same-sex couples that are provided to opposite-sex couples, they argued.

From the decision in Obergefell v. Hodges (p. 28):

Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

(Emphasis added.)

That seems to me to be pretty conclusive: if you offer benefits to married opposite-sex couples, you must offer the same benefits to married same-sex couples.

Am I missing something?

Via Joe.My.God.

Update: A possible explanation:

• In Turner v. Pidgeon (City of Houston appeals Texas Supreme Court holding that Obergefell didn’t settle question whether married same-sex couples must receive same spousal benefits as different-sex couples), Case Number 17-424, the court DENIES CERT, i.e., will not hear the case.

While speculation is just that - only speculative - it's possible the justices think it's premature to take up the case given that the Texas Supreme Court remanded for further proceedings in lower court.

Snap! Or Is That "Slap!"

Another judge has stopped Trump's military trans ban, cold. And he wasn't gentle about it:

A federal judge has entirely halted President Donald Trump's ban on transgender people serving in the U.S. Armed Forces, and called the Commander-in-Chief's tweets announcing the total ban in July "capricious, arbitrary, and unqualified." Trump this past summer sought to bar any new transgender recruits from entering the military and discharge all openly-transgender service members.

The cherry on top:

"President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest," Judge Garbis wrote in his decision "Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that 'the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.'" . . . .

"An unexpected announcement by the President and Commander in Chief of the United States via Twitter that 'the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military' certainly can be considered shocking under the circumstances," the decision continued.

Happy Thanksgiving, asshole.

Waiting for outraged statement from Tony Perkins about "lawless judges" in 5 . . . 4 . . . 3 . . . .

Because we all know this "policy" was a sop to the anti-LGBT "Christians" in the base.

For all you legal geeks, the decision is here. It's very closely reasoned and very precise.

Well, It Was Nice While It Lasted

The American experiment in self-governance, I mean. Here's one more sign that it's on the way out:

A federal judge Monday permanently struck down one of President Donald Trump’s first executive orders, cutting off funds to “sanctuary cities.”

In a summary judgment ruling, U.S. District Judge William Orrick III found Trump’s Jan. 25 executive order violated the Constitution in multiple ways: by invoking spending powers that belong exclusively to Congress, and by placing unrelated conditions on federal grants in violation of the Tenth Amendment.

“Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” Orrick wrote in a 28-page ruling.

So far, all well and good. (There are further details at the link.)

The DoJ,on the other hand, doesn't seem to believe in American system of government:

However, a Department of Justice spokesman said the court had “exceeded its authority” in its ruling, and vowed that the department would continue to follow Trump’s direction with regard to the January executive order.

Let's see -- where in the Constitution does it say that the executive branch gets to decide the limits on the power of the courts?

I see a flurry of contempt citations coming.

Via Joe.My.God.

Idiots du Jour

Which would be the majority of the Arkansas Supreme Court who came up with this decision:

Arkansas' highest court on Thursday threw out a judge's ruling that could have allowed all married same-sex couples to get the names of both spouses on their children's birth certificates without a court order, saying it doesn't violate equal protection "to acknowledge basic biological truths."

The state Supreme Court also issued a rare admonishment to Pulaski County Circuit Judge Tim Fox, saying he made "inappropriate remarks" in his ruling that struck down the birth certificate law. Fox had cited the U.S. Supreme Court's decision legalizing gay marriage in his ruling last year that said married same-sex couples should have both names listed on their children's birth certificates, just as heterosexual married couples do, without requiring a court order. . . .

"What is before this court is a narrow issue of whether the birth-certificate statutes as written deny the appellees due process," Justice Josephine Linker Hart wrote in the court's majority opinion. "...In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child that the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths."

The stupidity evidenced here is staggering.

Right up front, birth certificates are not about biological parentage, they are about legal parentage: who has legal responsibility for the child. Under the Arkansas court's thinking, a child born through artificial insemination to a woman whose husband is sterile should have the (anonymous) sperm donor listed as the father. A child born through surrogacy should have the surrogate listed as the mother. Neither a sperm donor nor a surrogate has legal responsibility for the child.

The bias in this opinion is only compounded by the fact that it quotes the portion of Obergefell that says listing as parent/spouse on birth and death certificates as among the rights and benefits of marriage that must be accorded to same-sex couples, and then declares that part of the opinion irrelevant to the question of whether both same-sex parents must be listed on a child's birth certificate.

The Court mentioned birth certificates only once, stating,

Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate
succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

Obergefell, ___ U.S. at ___, 135 S. Ct. at 2601. This single mention of birth certificates was related only to its observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” Id. at ___, 135 S.Ct. at 2599.

The full slip opinion is here.

Depending on how fast this gets to the Supreme Court, if the Court decides to hear it at all, rather than remanding it back to the state court, it will go down in flames, 5-3. Even if the Hairpiece manages to get an appointment through the Senate, it will still be 5-4.

And, just in case you were wondering, bias is alive and well in Arkansas.

Today's Must-Read: Whither America?

From Ian Millhiser at Think Progress:

Sen. Richard Burr (R-NC) joked to Republican volunteers on Saturday about gun owners shooting Hillary Clinton. In audio first obtained by CNN, the North Carolina senator talks about wandering into a gun store and seeing a magazine with Clinton’s picture on it. “I was a little bit shocked,” he quips, that “it didn’t have a bullseye on it.”

He later apologized. And, in fairness, it is unlikely that the sitting chair of the Senate Intelligence Committee believes that assassination is the appropriate response to a Democratic woman running for president. But the same recording in which he made those remarks also captures his thoughts on the appropriate response to a Democratic presidency. And it is a constitutional crisis.

“If Hillary Clinton becomes president,” said Burr, who is currently locked in a tight race to keep his seat in the Senate, “I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

Forget about the bulls-eye remark -- that's surface noise and Millhiser makes a little too much of it. (It can just as easily be read as an ironic comment on the propensities of North Carolina Republicans, although given the source, that may be a little too generous.)

What's important is the part about the Supreme Court vacancy, which, as Millhiser points out, echoes comments made by John McCain and Ted Cruz.

The main thrust of the article is the somewhat tattered condition of the Court at this point. We're at the point -- long past it, actually -- where ideology is a prerequisite for consideration of candidates to the bench. The result, depending on who has the majority on any given question, has been disastrous. (Citizens United, Hobby Lobby, and now Northeast Ohio Coalition for the Homeless are, put quite simply, ridiculous decisions)

Which leads me to my own sidebar on Millhiser's essay: I don't think even our "reliable news sources" could cast this as a "both sides do it" scenario. It's quite evident that the majority in this country is still center-left (Millhisers cites some surprising statistics about popular votes, Democratic/Republican, and the make-up of the Senate), and the Republican party is adamantly opposed to most of what the rest of the country favors. Their response is not to rethink their ideology, but to tinker with the system until they get what they want -- gerrymandering, vote suppression, you name it.

And as a footnote, this is what the right wing in this country considers "liberal."

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Today's Must-Read

This struck a chord. The headline nails it:

Why does Hobby Lobby have more rights than a sacred mountain?

The lead-in:

In recent years, the U.S. Supreme Court has solidified the concept of corporate personhood. Following rulings in such cases as Hobby Lobby and Citizens United, U.S. law has established that companies are, like people, entitled to certain rights and protections.

But that’s not the only instance of extending legal rights to nonhuman entities. New Zealand took a radically different approach in 2014 with the Te Urewera Act which granted an 821-square-mile forest the legal status of a person. The forest is sacred to the Tūhoe people, an indigenous group of the Maori. For them Te Urewera is an ancient and ancestral homeland that breathes life into their culture. The forest is also a living ancestor. The Te Urewera Act concludes that “Te Urewera has an identity in and of itself,” and thus must be its own entity with “all the rights, powers, duties, and liabilities of a legal person.” Te Urewera holds title to itself.

Mount Taylor, NM

The article goes on to discuss Mount Taylor in New Mexico, which the Zuni and the Navajo consider a holy place equivalent to -- as the article notes -- the Vatican.

The idea of a corporation as a person is really nothing more than a legal fiction created so that the law has some way to deal with that sort of entity; to grant a legal fiction the rights of natural person is, to put it bluntly, ridiculous, but I suppose it's only to be expected when our Supreme Court is peopled by corporatists.

At any rate, as a card-carrying Pagan, I find the attitude toward the natural world expressed by traditional peoples much more in tune with my own attitudes, and I see no reason why a sacred mountain can't have the same rights as a corporation.

Read the whole thing.