Battle Lines

Judge Richard Posner, appointed by Republican President Ronald Reagan in 1981, wrote the unanimous decision on behalf of a three-judge panel of the Chicago-based 7th U.S. Circuit Court of Appeals, striking down state bans on same-sex marriage in Wisconsin and Indiana. This line from Judge Posner is echoing all over the blogosphere:

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Given that two other federal appeals courts have struck down bans in Virginia and in Utah and Oklahoma (both decisions stayed pending appeal), “The Supreme Court is expected to weigh in on the gay marriage issue during its coming term, which starts in October and ends in June 2015,” reports Reuters.

On the other side, this week Federal District Judge Martin Feldman in Louisiana upheld that state’s ban on same-sex marriage, giving an indication of the hoary old arguments that the anti-equality side will marshal before the highest court. To wit:

“This Court is persuaded that Louisiana has a legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”

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Hell Freezes Over

Organizers of the NYC Saint Patrick’s Day Parade announced they will, for the first time, allow a gay-identified group to march under its own banner in 2015—OUT@NBCUniversal, an LGBT support group at the company that broadcasts the parade. Actual gay Irish groups can apply to March in 2016, but whether that means their applications will be accepted wasn’t entirely made clear.

Still, it’s crack in the wall, and one achieved in no small major by corporate sponsors exerting pressure on the parade organizers, who have close ties with the New York archdiocese. As the Washington Post reported:

Guinness’ parent company said, “We are pleased to see that the various parties are making progress on this issue.” It said it was open to talking with the organizers about supporting the 2015 parade.

NBC, whose local affiliate has been televising the parade since the 1990s, would not confirm reports that it had threatened to drop coverage over the issue of gay participation. But it said NBC executive Francis Comerford, a member of the parade committee, helped with the agreement to include OUT@NBCUniversal.

The Michael Sam Shower Saga

Dropped from the Rams, and maybe from professional football entirely. Some are blaming an ESPN story inquiring about Sam’s showering with or without the team and related publicity. Very sad if that’s the reason why.

More. A possible reprieve, with the Dallas Cowboys. Now that would be interesting, Texas-wise.

Increasingly Indefensible

From Gay City News, on this week’s U.S. Seventh Circuit Court of Appeals hearing on same-sex marriage bans:

One suspects, however, that [Indiana Solicitor General Thomas M. Fisher and Wisconsin Assistant Attorney General Timothy C. Samuelson ] did not count on getting the sort of tough cross-examination they got from Richard Posner, the most senior member of the panel who was appointed to the court by Ronald Reagan in 1981.

Posner, a father of a school of legal analysis known as the law-and-economics movement and a devoted empiricist, actually mocked the arguments he was getting from the state attorneys, though observers following the trend of marriage equality decisions over the past year might have predicted this result in light of his record of relentlessly pursuing facts and logic in his decisions. Referring to data showing that about 250,000 children nationwide are living with gay adoptive parents—about 3,000 of them in Indiana, he noted—Posner pressed Fisher to explain why Indiana would deny those children the same rights and security of having married parents that are accorded to the adopted children of married couples. The Indiana solicitor general could give him no real answer.

The report concludes: “The Seventh Circuit seems clearly poised to join the Fourth and the 10th in ruling for marriage equality.”

More. Slate has audio excerpts.

Furthermore. Bart Hinkle writes, with a wink, For Straight Marriage, the End Is Near. Apparently, Phyllis Schlafly agrees.

On Campus, Absence of Due Process Extended to Gays

Rape and lesser incidents of sexual misconduct on college campus must not be tolerated, but false accusations without due process for the accused, often leading to sanctions or being expelled and a public record that can’t be challenged, are not justice. That’s been true of male-female student relationships on campus (where charges often follow sex that occurred while both individuals were inebriated or stoned), and now it’s been extended to gays, as the Washington Post reports about a case at Brandeis.

The charges here, however, involve a couple that dated for two years and, after the breakup, one accused the other of violations such as staring too much at him while he was undressed in the bathroom, and kissing him while he was asleep and thus unable to consent (did I mention this was a two-year relationship)?

The accused, who was not entitled to legal counsel, was sanctioned by university officials but not expelled. But “he is incensed that his life was turned upside down with what he believes was flagrant disregard for his due-process rights. And he worries about how the sanctions might affect his future.” The accuser “is outraged that the university did not expel his ex-boyfriend.”

The Post reports:

The current and former college students describe themselves as victims of false accusations amid a national campaign — led by the White House — to stamp out sexual violence on campuses. While the federal push to increase awareness of sexual assault is aimed at keeping students safe and holding the nation’s colleges and universities accountable, some of the accused say the pressure on their schools has led to an unfair tipping of the scales against them.

Maybe these incidents should be left to the judicial system when there is evidence of an actual crime. Otherwise, students should learn they are expected to take responsibility for their actions, including bad relationship decisions and morning-after regrets.

More. “Wink” comments:

So many microaggressions! This article should have had a trigger warning. I feel violated and plan to sue.

Furthermore. From Philadelphia Magazine: “The battle over what constitutes sexual assault on college campuses is reaching new levels of absurdity.” You think? But don’t try to tell that to Sen. Claire McCaskill.

Politics Replaces Spirituality in the Left’s Playbook

James Kirchick writes for The Tablet about how Congregation Beit Simchat Torah in NYC, the prestigious LGBT synagogue, is now run by a virulently anti-Israel faction that has brought a large number of straight anti-Zionists (mainly left-feminists) into the congregation. This has occurred under the leadership of Rabbi Sharon Kleinbaum who, along with her partner, American Federation of Teachers president Randi Weingarten, make up a formidable leftwing power couple. As one departing member put it, Kleinbaum is “essentially delivering Hamas propaganda” from the pulpit. That’s deeply depressing but the answer is for those of good will to form their own gay congregation that does not preach the left’s dogma of Israel hatred. And the sooner the better.

Back in the ’80s, in the pre-Kleinbaum era, I attended a service at Beit Simchat Torah. It was deeply moving and spiritually uplifting. How sad that this is no longer true.

More. “Alvie” comments:

Bringing in a large number of straight anti-Zionists from NYC’s leftwing feminist community falls under the typical pattern of subverting institutions in order to take them over and redirect them to serve the “progressive” cause. The Presbyterian church is experiencing something very similar — a majority of Presbyterians are not anti-Israel, but its leadership council is now run by anti-Zionists who support a boycott of the Jewish state (but not of the anti-gay Islamic dictatorships that target Israel, natch).

Furthermore. Via Michael Gerson’s Aug. 28 column in the Washington Post:

In a recent essay, Matti Friedman, a reporter for the Associated Press in Jerusalem between 2006 and 2011, recalls being forced to weave a different story: of Israeli oppression and Palestinian victimhood. He says his editors consistently spiked reporting inconsistent with this narrative, even when it included major news (such as details of Israeli Prime Minister Ehud Olmert’s peace offer). …

Friedman blames this “severe malfunction” of journalism on the resurgence of an old pattern. Historically, Jews have been a stateless entity on which people have projected their anger and resentments. With the advent of a Jewish state, those projections are focused on Israel, which gets disproportionate (and disproportionately hostile) attention as the embodiment of colonialism and nationalism — things that European and American liberals find offensive.

“You don’t need to be a history professor, or a psychiatrist, to understand what’s going on,” says Friedman. “The descendants of powerless people who were pushed out of Europe and the Islamic Middle East have become what their grandparents were — the pool into which the world spits. The Jews of Israel are the screen onto which it has become socially acceptable to project the things you hate about yourself and your own country.

Gay Marriage and Freedom of Association

Via Reason: Libertarians, Gay Marriage, and Freedom of Association. It’s subtitled, “How the same right allows for both same-sex marriage recognition and refusing to sell gay couples wedding cakes.”

Progressives and conservatives won’t get it.

Social Conservatives Feeling Left Out

You’d never guess it from the liberal media/blogosphere echo chamber, but social conservatives increasingly feel alienated from the GOP as the party distances itself from culture war issues (at least outside of Texas and the fervid mind of Michele Bachmann). As the Washington Post reports:

Many social conservatives say they feel politically isolated as the country seems to be hurtling to the left, with marijuana now legal in Colorado and gay marriage gaining ground across the nation. They feel out of place in a GOP increasingly dominated by tea party activists and libertarians who prefer to focus on taxes and the role of government and often disagree with social conservatives on drugs or gay rights. …

The disconnect between social conservatives and the GOP has become a “chasm,” said Gary Bauer, who ran for the Republican presidential nomination in 2000 and is now head of the Campaign for Working Families. …“Values voters have been treated as the stepchildren of the family, while the party has wanted to get on with so-called more electorally popular ideas,” Bauer said.

Interestingly, the paper notes the antipathy social conservatives feel toward tea party activists (whose concerns focus on over-reaching government). If all you read are progressive diatribes, you would necessarily think “tea party” and “social conservatives” are one and the same.

More. Maryland’s gubernatorial race is a case in point:

Republican Maryland gubernatorial candidate Larry Hogan on Friday said his position on marriage rights for same-sex couples has “evolved.”… Hogan said marriage rights for same-sex couples, extending in-state tuition to undocumented immigrants and other social issues “are really decided in Maryland.”

“They have no part in this campaign whatsoever,” he said. “We’ve been completely focused on the issues that all Marylanders are focused on right now, and that’s economic issues.”

Furthermore: Cuyahoga County Republicans welcome Gay Games to Cleveland. As I’ve previously noted, it was reported that the Texas GOP’s rearguard anti-gay antics were a factor in costing Dallas the 2016 GOP convention, which is going instead to gay-welcoming Cleveland.

Relatedly.Via David Lampo at the Daily Caller: Why Republicans Should Pray The Supreme Court Legalizes Gay Marriage:

In short, all but the true believers realize the war has been lost. Unfortunately, those true believers are still the loudest voices in the Republican Party, the ones who write its platform and set its agenda. With them as the face of the party, 2016 presidential candidates who want to grow the party and expand its reach (think Rand Paul or Paul Ryan) will have a very difficult time doing so.

Yes indeed.

More Iranian Horrors

While world attention is focused on the Middle East, we shouldn’t forget that in Iran and elsewhere being gay is a capital offense. Via the Daily Beast:

The tragic hanging of two “sodomites” in Iran may seem, in theory, like an obvious cause for U.S. concern and U.S. action. … Yet in practice, those most attentive to LGBT concerns may be the least eager to pick this fight.”

There are some interesting political double shuffles going on as well. The article notes:

When Iran persecutes gay people, conservatives in the United States suddenly become enamored of gay rights—and bash the Obama administration for not doing enough to defend them.

But certain liberal bedrocks, fearing the appearance of hawkishness, have kept mum or worse. Some observations (from earlier this year) on the matter, from Legal Insurrection.

Israel, of course, remains the only Middle Eastern state where gays can live their lives freely.

More. And here at home: Sanitizing terror: Has the press distorted Islamic radical’s crusade against gay men? Clearly so.

Baker Implodes

It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.

But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.

It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit,  Jeffrey Sutton:

In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts

You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”

The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”

But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.

Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.

In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.

Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.

Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”

But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.