Just a few scant years ago, who would have thought that marriage equality could be coming even to Mississippi? Not that the fight there is over. As The Clarion Ledger reports:
Same-sex marriages won’t be allowed in Mississippi while the state defends its gay-marriage ban, a federal appeals court said Thursday.
U.S. District Judge Carlton Reeves on Nov. 25 overturned Mississippi’s definition of marriage as being only between a man and a woman, but he put his own decision on hold for two weeks to give the state time to appeal his ruling.
On Thursday, the 5th U.S. Circuit Court of Appeals said Mississippi cannot issue marriage licenses to same-sex couples during the appeals process. But the New Orleans-based court agreed to a quick process for considering the dispute over Mississippi’s definition of who can marry.
The paper also reports that:
Republican Gov. Phil Bryant said he voted for Mississippi’s constitutional amendment to ban gay marriage and he “absolutely” still supports it.
“This is a constitutional issue with me,” Bryant told reporters Tuesday in Jackson. “You know, the people of the state of Mississippi vote to change a law, and then one federal judge can say, ‘Well, I’m going to overrule that.’ Then what good is the rule of law? What would be next? What if a judge said, ‘We think you ought to legalize marijuana.’ Then does that mean the laws of the state don’t exist anymore?
“So, this is a constitutional battle that I think you’re seeing waged all across the United States, is whether or not the people of a particular state, or the lawmakers that represent it, have the right to make certain laws,” Bryant said.
Recent months have seen a surprising number of conservative GOP governors and other officials acquiesce to the inevitable and accept, if not support, rulings favoring the freedom to marry (including Wisconsin Gov. Scott Walker and Utah Gov. Gary Herbert, among others). But the hard core of the social conservative base, exemplified in Congress by Texas Sen. Ted Cruz and by governors such as Bryant and former Arkansas Gov. Mike Huckabee, will man the guns of the last redoubt.
It matters not the Gov. Bryant’s argument is, well, specious, given that a key role of the judiciary is to overturn “democratically” passed laws that violate the fundamental protections of the federal Constitution. Ours is a republic of separate and distinct branches, some with the power to overrule others, and not a majoritarian dictatorship or mobocracy. Conservatives used to understand and defend that point, to the chagrin of progressives.
That the left often supports government overreach of dubious legality, and that these expansions of federal executive power do not involve the protection of fundamental liberties but far more often violate individual rights, confuses things. Fair enough, a pox on both partisan houses, as both left and right, conservatives and progressives, Democrats and Republicans are too often power-grubbing hypocrites, if not downright cesspools of corruption.
Nevertheless, recognition of the right to marry is coming, even in Mississippi, if not with a 5th Circuit ruling, then when the Supreme Court inevitably weighs in. And this expansion of liberty, despite the opposition of local majorities, is fundamentally and constitutionally sound.
13 Comments for “The Last Holdouts”
posted by Tom Scharbach on
“This is a constitutional issue with me,” Bryant told reporters Tuesday in Jackson. “You know, the people of the state of Mississippi vote to change a law, and then one federal judge can say, ‘Well, I’m going to overrule that.’ Then what good is the rule of law? What would be next? … Then does that mean the laws of the state don’t exist anymore?”
If the laws are unconstitutional, then, nope, they don’t exist any more. You’d think that Governor Bryant, born the same year that Brown v. Board was decided, might have figured that out by now.
posted by Houndentenor on
60 years ago wouldn’t his predecessor had said the same thing about Brown v Board of Ed? The reason for having a Constitution and its amendments ensuring rights is to make sure the majority cannot gang up on the minority. I don’t know why certain people can’t understand that. Or rather why they can only understand that when the courts go their way. At least we aren’t hearing as much about “unelected judges” (Is that a proposal to amend the Constitution to have elections for federal judges? Of course not. It’s just a focus-group tested talking point aimed at low-information citizens.) recently. Yes, the right waged ugly bigoted anti-gay campaigns in almost every state. It will be something the country is ashamed of and tries to pretend never happened in not too distant future.
posted by Tom Scharbach on
I would gently point out that Governor Bryant is not alone in “holding out” until the last trench is overrun. Wisconsin’s Governor Walker, who you cite as an example of “officials [who] acquiesce to the inevitable and accept, if not support, rulings favoring the freedom to marry” id so only after the Supreme Court refused to grant cert in the state’s last-trench appeal to the Court.
In fact, I would quietly suggest that “holding out” has been the rule rather than the exception in the red and purple states. The exceptions to the rule come predominantly from blue states like California and New Jersey.
posted by Houndentenor on
Not long ago someone (I wish I could remember who) predicted that 20 years from now the Republicans will be claiming credit for marriage equality even though they fought it every step of the way and even used their opposition of it as their cornerstone plank in 2004. Stephen is Exhibit A. Accepting the inevitable hardly makes one an ally. Some of us have long memories in that regard, and that goes for Democrats like Shumer and Clinton as well.
posted by Tom Scharbach on
I don’t care who gets the credit as long as gays and lesbians enjoy marriage equality. I am more than happy to give Governor Walker the credit for bringing marriage equality to Wisconsin if that will help bring Republicans to the table in a decade or two.
Yes, true, he fought it long and hard during the course of his entire political career, gave up the fight only after the Supreme Court decided to let the 7th Circuit decision stand, and continues to assert his personal support for traditional marriage.
No matter. Governor Walker gave up the fight after the Supreme Court decided, when he could have resisted. He could have shut down the country clerks’ offices rather than allow marriage licenses to be issued. He could have ordered the Bureau of Vital Statistics not to record same-sex marriages. He could have ordered the Department of Revenue to refuse to accept tax filings from married same-sex couples. He could have called for nullification or open resistance. He could have used his words and actions to whip up anti-gay resentment, anger and violence.
He did none of those things. Instead, when push came to shove, he did the right thing, and refused to throw the state into turmoil. Let’s hope that other Republican officials will follow his footsteps.
posted by Shadow Chaser on
FYI … Judge Reeves is African-American and an Obama appointee. The federal judge who struck down the law in Arkansas is a white woman and an Obama appointee.
During his time in the Senate, did John McCain nominate a marriage supporter to a federal judgeship in Arizona?
posted by Tom Jefferson 3rd on
In terms of marriage equality;
I think that most people — politicians and pundits and ‘media whores’ and lobbyists and the like — probably know that the game is done.
However, the sleezey money making and power grabbing is still get some life left in it. You can still get people to write you checks, give you attention and even vote for you, if you pledge to fight against gay marriage.
posted by Tom Jefferson III on
posted by Jorge on
It matters not the Gov. Bryant’s argument is, well, specious, given that a key role of the judiciary is to overturn “democratically” passed laws that violate the fundamental protections of the federal Constitution. Ours is a republic of separate and distinct branches, some with the power to overrule others, and not a majoritarian dictatorship or mobocracy.
I don’t have much doubt that governor Bryant understands this. He simply does not believe gay marriage bans are even remotely unconstitutional.
Karl Rove is famous for running a campaign that attacked John Kerry early and repeatedly where he was strongest. A much more common theory in politics is that you do not acknowledge your opponent’s strongest argument. It can have detrimental effects on persuasion. I’m sure Gov. Bryant would try to persuade the country to support a federal marriage amendment if he could; he does not want to harm his cause.
By the way, I find that most people who discuss politics never acknowledge their opposition’s strongest positions unless you repeatedly demand that they do. This is why political pundits are more shrill than actual politicians. Most of the big name reporters will repeatedly demand that politicians answer their opposition’s strongest position. This is one of the benefits of the free press.
(Repeatedly taking on the opposition where they are strongest is an effective persuasion tactic, too, and for the same reason as not acknowledging it at all–it causes people to stop thinking through the issue. But it has disadvantages. Every instance of it I have seen has resulted in the opposition hating the person who does it.)
posted by Tom Scharbach on
Again, in response to a few of the comments, I want to point out that Governor Bryant is doing nothing new.
He is trudging along the same path as other conservative Governors (“Wisconsin’s Governor Scott Walker and Utah’s Governor Gary Herbert, among others”, come to mind) trudged during District Court and Circuit Court proceedings. He is even making the same arguments.
At this point, Mississippi is subject to a District Court ruling that has been stayed pending decision by the 5th Circuit. The 5th Circuit has not yet heard arguments in the case, much less decided the case. And, of course, the Supreme Court has not spoken.
Governor Walker, Governor Hubert and “the others” that are supposedly more enlightened did not give up the fight until the Supreme Court ruled against them. So why should Governor Bryant?
I don’t know what is so different about Governor Bryant doing the same, and I certainly don’t know Governor Bryant’s refusal to throw in the towel before the matter has even gotten to the 5th Circuit translates into something more egregious than Governor Walker’s or Governor Herbert’s refusal to throw in the towel before the Supreme Court had spoken to their cases.
Did anyone expect Mississippi to roll over without appeal? I didn’t, and given the composition of the 5th Circuit, I think that it is unreasonable to suggest that he should do so.
Yes, Governor Bryant’s statements about the courts are “specious”, echoing the statements of Southern governors before him going back into the 1950’s and 1960’s, when the federal courts overruled state legislatures and state constitutions on the issue of school segregation. But are they really so different than the “will of the people” arguments advanced by Governor Walker and Governor Herbert in the articles Stephen cited? Historical context aside, the arguments aren’t all that different.
We all knew, going in, that this was going to be a hard and long fight, even with the Constitution in our corner. It isn’t over yet (if Breyer, Ginsburg or Kennedy dies or is incapacitated before the Supreme Court rules in the 6th Circuit cases, we could easily see a 4-4 decision, which will leave the 6th Circuit decision in place), and we will have a lot of hard fighting to do even after a favorable decision from the Supreme Court.
I guess I just don’t understand what drives this post. I wonder if Stephen’s apparent anger at Governor Bryant has something to do with intra-Republican politics. I can’t otherwise explain why Governor Walker and Governor Hubert are held up as exemplars, but Governor Bryant is chastised.
Or perhaps Stephen is preparing us for the next Republican talking points (“I personally support traditional/natural marriage, but the law is now settled …” coupled with complaints about “activist judges” and support for appointing judges who “respect the Constitution”). We are going to hear of lot of that going forward to the 2016 Republican primaries, while tilling the ground for an argument that this is “gay-supportive”.
I just don’t know. I suppose Stephen will tilt his hand over time.
posted by Jorge on
I guess I just don’t understand what drives this post.
I think it’s inertia. Blah happens, let’s say blah about it.
posted by Don on
The culture of the south makes a Walker like position simply impossible. “It’s just not done” is what a great southern lady once said to me. No explanation. No why do we do it that way. No questions asked. Black and white thinking. Right and wrong. No discussion of shades of gray or reasons. They aren’t stupid people. But they are stubborn. And in/out group dynamics are unusually strong there.
If you reflect on southern positions on issues, and the lack of thoughtful discussion on issues, it all makes more sense. other parts of the country don’t explore the issues in depth, but they don’t have that overly simplistic do/don’t dynamic amongst their educated classes. In the south, they do.
posted by John on
The U.S. Supreme Court has not yet held that same-sex marriage is a fundamental right under the federal constitution. And of course nothing in the text or history of that constitution would support a theory that same-sex marriage is provided for or protected by the constitution. If will take five votes on the Supreme Court, and there is every reason to believe that will happen this year. The point is that the soon-to-be-right for same-sex couples to marry is not a right known to the constitution, but only one that will be imposed by main force, by the votes of only five people. So, since the Court has not yet done this, Bryant is not unreasonable in advocating the will of the people of his State. Whether it is consistent with republican government to permit only five people to override the wil of the people is, I suppose, a matter of whose ox is being gored.