6th Circuit upholds marriage discrimination

Ruling is first at appellate level to go against equality, establishes need for SCOTUS to rule

Lisa Keen  |  Keen News Service
lisakeen@mac.com

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In a decision that will compel the U.S. Supreme Court to rule on the constitutionality of marriage equality bans, a panel of the Sixth Circuit U.S. Court of Appeals ruled Thursday, Nov. 6, that it is not unconstitutional for a state to ban marriage licenses for same-sex couples or refuse to recognize marriage licenses such couples obtain from other states.

It is the first federal appeals court to make such a ruling, and this one reversed six lower court rulings in four states, setting it on a direct path to the U.S. Supreme Court.

Many court observers believe they know how the Supreme Court will rule: that such bans are unconstitutional. That’s because on Oct. 6, there were not even four justices willing to hear appeals in defense of such bans. And the 40-page Sixth Circuit panel decision now creates a conflict among the circuits, essentially compelling the Supreme Court to make a definitive ruling on the issue.

The 2-to-1 decision from the Sixth Circuit was what many had also predicted. The two Republican appointees — both appointed to the bench by President George W. Bush — upheld the state bans. The one Democratic appointee — a Clinton choice — voted in dissent.

Writing for the majority, Judge Jeffrey Sutton acknowledged the futility of his ruling in its second sentence: “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.”

But, echoing statements he made during oral argument in August, Sutton said the approval of same-sex marriage should be “in the hands of state voters” and that the Supreme Court’s 1972 summary dismissal of Minnesota gay couple’s appeal (in Baker v. Nelson) still binds lower courts to uphold the bans by other states.

“Respect for democratic control over this traditional area of state expertise ensures that ‘a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage’ can have free and reasonable rein.”

As for licenses granted by other states, Sutton said, “States have always decided for themselves when to yield to laws of other states.”

Susan Sommer, Lambda Legal’s director of constitutional litigation, said her group is “extremely disappointed” and that the decision “highlights the need for the U. S. Supreme Court to right this injustice.”

Freedom to Marry President Evan Wolfson said the decision was “compeletly out of step with the Supreme Court’s clear signal last month” and “out of step with the majority of the American people.”

He also said there are at least two rational reasons for limiting marriage to heterosexual couples: One is that government “got into the business of defining marriage … to regulate sex, most especially the intended and unintended effects of male-female intercourse.”

“It is not society’s laws or for that matter any one religion’s laws, but nature’s laws [that men and women complement each other biologically], that created the policy imperative,” wrote Sutton.

“If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage,” Sutton wrote later in the decision.

The other reason, Sutton said, is “a state might wish to wait and see before changing a norm that our society [like all others] has accepted for centuries.” Noting that Michigan voters approved its ban just one year after same-sex marriage became possible in Massachusetts, Sutton said, “A state still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere.”

While Sutton acknowledged that there are costs to same-sex couples of denying them the right to vote, that harm “demands an answer — but from elected legislators, not life-tenured judges.”

He saw no evidence that the bans were born of animus but, rather, were motivated by “fear that the courts would seize control over an issue that people of good faith care deeply about.”

“[T]he institution of marriage arose independently of [the] record of discrimination” against gays, wrote Sutton.

Oddly, Sutton’s ruling acknowledged only 19 states and the District of Columbia as having allowed same-sex couples to marry. He did not mention that another nine states began issuing licenses to same-sex couples after the Supreme Court’s refusal to hear appeals from the Fourth, Seventh, Ninth and Tenth Circuits.

Sutton said the Supreme Court’s decision in U.S. v. Windsor, striking down a key provision of the Defense of Marriage Act, had no impact on the panel majority’s ruling in the Sixth Circuit cases. He said Windsor hinged on DOMA’s “unprecedented intrusion into the states’ authority over domestic relations.”

Sutton said the Supreme Court’s action in denying review of the seven appeals it refused in October expressed no opinion on the constitutionality of state bans on same-sex marriage.

“A decision not to decide is a decision not to decide,” wrote Sutton.

In dissent, Judge Martha Daughtery derided the majority opinion, saying it “wholly fails to grapple with the relevant constitutional questions” and instead occupies itself with the question of “who should decide” and exhibiting a “reverence for ‘proceeding with caution’.”

“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate,” wrote Daughtery, “our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

The Sixth Circuit decision and dissent was addressed in federal district court rulings in six cases involving state bans in Kentucky, Michigan, Ohio and Tennessee: DeBoer v. Snyder (Michigan), Obergefell v. Hodges and Henry v. Hodges (Ohio), Bourke v. Beshear and Love v. Beshear (Kentucky), and Tanco v. Haslam (Tennessee).

The ruling represents the marriage equality movement’s second court loss since 2012 when a federal judge in Nevada ruled against same-sex couples in Sevcik v. Sandoval. The first loss was from a federal district court judge in Louisiana in Robicheaux v. Caldwell on Sept. 3.

The Fifth Circuit announced on Oct. 28 that it would hear oral arguments in the Louisiana case and one from Texas on Jan. 5.

© 2014 Keen News Service. All rights reserved.

—  Tammye Nash

Wyoming federal judge to announce marriage equality decision by Monday

safe_imageMarriage equality may come to Wyoming as soon as Monday.

U.S. District Court Judge Scott W. Skavdahl heard arguments today, Oct. 16, to Wyoming’s ban on same-sex marriages. Judge Skavdahl said that he will issue his ruling by 5:00 p.m., Monday, Oct. 20.

“We are grateful that the court has moved quickly in handling our case, which affects so many families across Wyoming who are seeking equal dignity and full legal recognition. We are confident that the judge will give this important case the consideration it deserves, and we look forward to the court’s decision,” said Wyoming Equality Executive Director Jeran Artery in a statement.

The case was brought by Wyoming Equality and four same-sex couples who requested an immediate order directing state officials to comply with two decisions of the U.S. Court of Appeals for the Tenth Circuit establishing that a state’s refusal to allow same-sex couples to marry violates the U.S. Constitution.

The U.S. Supreme Court declined to hear two appeals from the Tenth Circuit striking down marriage equality bans, meaning all states within the Tenth Circuit, including Wyoming, must comply with those decisions.

“The Tenth Circuit Court of Appeals has ruled that state laws prohibiting same-sex couples from marrying violate the U.S. Constitution’s guarantees of due process and equal protection of the laws. The State of Wyoming is obligated to follow the law as interpreted by the Tenth Circuit,” said National Center for Lesbian Rights attorney Chris Stoll. NCLR is one of the organizations representing the plaintiffs.

In 30 states, same-sex couples have the freedom to marry: AK, CA, CO, CT, DE, HI, ID, IA, IL, IN, ME, MD, MA, MN, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, UT, VA, VT, WA, WV and WI.

In an additional five states, including Wyoming, federal appellate rulings have set a binding precedent in favor of the freedom to marry, meaning the path is cleared for the freedom to marry there: AZ, KS, MT, SC, and WY.

In an additional 8 states, judges have issued rulings in favor of the freedom to marry, with many of these rulings now stayed as they proceed to appellate courts. In Texas and four other states, judges have struck down marriage bans — AR, FL, KY, MI, and TX — judges have struck down marriage bans. In three states — LA, OH and TN — judges have issued more limited pro-marriage rulings.

In Missouri, the marriages of same-sex couples legally performed in other states are respected.

Courts have cases pending, but have yet to rule, in seven states: AL, GA, MO, MS, NB, ND and SD.

—  James Russell

UPDATED: SCOTUS’ Anthony Kennedy stays same-sex marriages in ID, NV

1215 flashU.S. Supreme Court Justice Anthony Kennedy has issued a stay on same-sex marriages in Idaho and Nevada pending any further order by Justice Kennedy or the entire court.

“Lawyers for same-sex couples were told to file a response by 5 p.m. Thursday to Idaho’s request,” according to SCOTUS blog. The full order can be found here.

An AP report confirmed BuzzFeed’s Chris Geidner’s earlier inquiry that the stay would affect same-sex marriages in Nevada, which were also impacted by the Ninth Circuit court’s decision

Having allowed those other rulings to take effect without a full review by the Supreme Court, it would be surprising if the justices were to put the 9th circuit ruling on hold for any length of time.

The high court’s action Monday suggested that only an appellate ruling upholding a gay marriage ban would prompt the court to step in.

It’s just another twist from a court full of surprises this week.

Check out the Voice for ongoing news about this week’s rulings on same-sex marriages.

—  James Russell

The wingnuts speak on SCOTUS decision not to hear marriage case appeals

On Monday, Oct. 6, the national LGBT community rejoiced and wedding bells began to ring in 11 new marriage equality states when the Supreme Court of the United States announced it would not hear appeals of circuit court rulings striking down same-sex marriage bans in five states.

But for the right wing faction of the U.S., that ringing wasn’t wedding bells, but a death knell.

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Bryan Fischer

Perhaps one of the most outrageous declarations came from Bryan Fisher, “director of issue analysis” for the so-called American Family Association. Fischer called the Supreme Court’s decision not to hear the marriage appeals “the Dred Scott of gay marriage” and said that marriage equality is “as morally bankrupt and indefensible as the institution of slavery. Slavery ate away at America’s soul, and homosexual marriage will do the same thing, It is a deviant and grotesque caricature of the real thing. For this sexual debauchery to be normalized by the highest court in the land is a sign of the nation plunging headlong into a bottomless moral abyss.”

Jeremy Hooper, special projects consultant for the Gay and Lesbian Alliance Against Defamation, said that sometimes the best way to rebut what someone says is to get out of the way and just let them keep talking. So let me step aside and let the wingnuts speak. …

Right Wing Watch  rounded up responses from other wingnuts, including the Liberty Counsel, which issued a press release denouncing the Supreme Court’s “decision to watch marriage burn to ashes,” and accusing the justices of “dereliction of duty.”

Liberty Council Founder and Chairman Matt Staver declared, “Everyone will be affected by same-sex marriage because it is an intolerant agenda that will directly collide with religious freedom.”

The Family Research Council predicted that “more and more people [will] lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage,” adding that the Supreme Court’s decision “will allow rogue lower court judges who have ignored history and true legal precedent to silence the elected representatives of the people and the voice of the people themselves by overturning state provisions on marriage. Even more alarming, lower court judges are undermining our form of government and the rights and freedoms of citizens to govern themselves. This judicially led effort to force same sex ‘marriage’ on people will have negative consequences for our republic, not only as it relates to natural marriage but also undermining the rule of and respect for law.”

FRC did not that the court’s rejection of the appeals “ensures that the debate over natural marriage will continue and the good news is that time is not on the side of those who want to redefine marriage.”

The National Organization for Marriage called for passage of a national marriage amendment: “…the only alternative to letting unelected judges impose their view of marriage on Americans across the country is to pursue a process that will allow the American people to decide for themselves what is marriage. It is critical not only to marriage but to the republican form of government in this country to amend the Constitution to reaffirm the meaning of marriage. We therefore call on the US Congress to move forward immediately to send a federal marriage amendment to the states for ratification.”

And Focus on the Family clamored that the decision will result in a “further expansion of threats to religious freedom.”

“Marriage has always been — and will always be — between a man and a woman. Ultimately, no court can change that truth,” Focus on the Family’s statement said. “So regardless of legal outcomes, we’ll continue to address the importance of one-man, one-woman marriage to families, society and especially for children who have a right to both a mother and a father. Our concern continues to be for children who deserve to grow up with both a mom and a dad, as well as for the religious freedom rights of people who strongly believe in God’s design for marriage and want to live consistently with those beliefs.”

Faith and Freedom Coalition called the decision a “miscarriage of justice” and warned that SCOTUS will “reap a political whirlwind.” And the Florida Family Policy Council’s John Stemberger warned that the court “risks losing enormous institutional legitimacy” by ruling in favor of same-sex marriage.

Here’s a video of Bryan Fischer and his declaration of how SCOTUS imposed “sodomy-based marriage” on 11 states that voted against it.

—  Tammye Nash

SCOTUS rejects appeals in marriage cases

Decision means appellate rulings overturning gay marriage bans in 5 states stay in effect and stays on rulings are lifted.

 

Lisa Keen  |  Keen News Service

In a surprise development, the U.S. Supreme Court announced Monday, Oct. 6, that it would not accept for review any of the seven appeals on same-sex marriage bans from five states.

The action means that the stays placed on lower court decisions in all five states — decisions that struck down bans on marriage for same-sex couples — are immediately lifted, making way for lower courts to issue orders requiring the states to stop enforcing their bans and begin issuing marriage licenses.

The action also means that six other states in the same federal circuits as the five states which had appeals before the high court will have to abide by the federal appeals court rulings in those circuits or take the unusual tact of asking their circuits for full bench review of their cases. A three-judge panel in all three circuits — the Fourth, Seventh, and Tenth — struck down the bans on marriage for same-sex couples.

That means that very soon, same-sex couples will likely be able to marry in 30 states plus the District of Columbia, tipping the balance in favor of marriage equality, from the previous 19 states and D.C.

The Salt Lake Tribune reported that the Tenth Circuit issued an order just minutes after the Supreme Court’s announcement was made public, lifting the stay in that state and alerting clerks in Utah that they should immediately abide by its ruling that the ban is unconstitutional.

Colorado Attorney General John Suthers implied the Supreme Court announcement denying review of the cases was tantamount to a ruling.

“We have consistently maintained that we will abide by the Supreme Court’s determination on the constitutionality of marriage laws,” said Suthers in a press release. “By choosing not to take up the matter, the court has left the 10th Circuit ruling in place.”

He said Colorado clerks “must begin issuing marriage licenses to all same-sex couples” soon after the Tenth Circuit issued its order.

In Wisconsin, Republican Gov. Scott Walker told reporters on his re-election campaign trail that the issue is “resolved” and there would be no further attempts to defend the state ban; Dane County announced it would issue licenses to same-sex couples immediately.

The Indiana attorney general posted a statement indicating the state would begin issuing licenses “soon.”

The Fourth Circuit issued its order mandating that states stop enforcing the bans at 1 p.m. EDT Monday. Virginia Attorney General Mark Herring, who has opposed that state’s ban, issued a press release saying that same-sex couples could begin obtaining marriage licenses as soon as that order is issued.

“Local clerks are receiving guidance and forms necessary to begin performing marriages today,” said Herring’s office, “and the Attorney General’s Office is working with the Governor’s Office and state agencies to implement any needed changes in light of this action.”

“A new day has dawned, and the rights guaranteed by our Constitution are shining through,” said Herring in a press release Monday morning shortly after the Supreme Court issued its “Orders List” indicating that the seven appeals –including three from Virginia—were being denied.

“This is a tremendous moment in Virginia history,” said Herring. “We will continue to fight discrimination wherever we find it, but today, we celebrate a moment when we move closer to fulfilling the promise of equality ignited centuries ago in Virginia, and so central to the American experience.”

Shannon Minter, legal director for the National Center for Lesbian Rights, which has been involved in the Tenth Circuit case out of Utah, said NCLR is “thrilled.”

“This is a huge step forward for Utah and the entire country,” said Minter. “We are hopeful that the other cases pending across the country will also vindicate the freedom to marry, so that all couples, no matter where they travel or live, will be treated as equal citizens and have the same basic security and protections for their families that other Americans enjoy.”

The Supreme Court’s announcement does not legally affect the remaining 20 states, but it could give courts in those other states and circuits some pause before upholding similar bans in those states and circuits. Some experts say they expect the Supreme Court will almost certainly take up an appeal should a federal appeals court rule such bans to be constitutional.

Prominent constitutional law scholar Laurence Tribe of Harvard University, who argued against bans on sodomy in the 1986 Bowers v. Hardwick case, said “As soon as a solid split emerges, I fully expect the Court to grant [review],” said Tribe. “I’d watch the Sixth Circuit if I were you.”

A three-judge panel of the Sixth Circuit heard oral arguments August 6 in six marriage equality lawsuits from four states: Kentucky, Michigan, Ohio, and Tennessee. The panel has yet to issue its opinion, but questions from two of the three judges during the argument gave repeated voice to various justifications for the bans.

Jon Davidson, national legal director for Lambda Legal, which is involved in a number of marriage equality cases, agrees that the Supreme Court will likely take a circuit decision from the Sixth or Fifth circuits if they conflict with the decisions rendered by the Fourth, Seventh, and Tenth Circuits. But he said he doesn’t think the high court would consider an appeal from a future circuit, such as the Ninth, which might agree with the previous circuits.

Davidson said there is a way that the six states in the Fourth, Seventh, and Tenth circuits –who were not part of Monday’s batch of seven cases– could try to avoid or delay allowing same-sex couples to marry in those states. He said a state, such as South Carolina, could try and appeal an existing case to the full circuit bench in hopes of getting a different decision than that issued by the circuit’s three-judge panel. That seems like a long shot but one that may have political benefits for governors or attorneys general in more conservative states.

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said she thinks the Supreme Court’s announcement today sends “a powerful signal to the many other courts considering the issue that there is no reason to delay and perpetuate the harms to same-sex couples around the nation.” Bonauto won the landmark case in Massachusetts that led to the first state allowing same-sex couples to marry in 2004; she also led the successful effort to overturn a key provision of the Defense of Marriage Act last year.

Prior to Monday’s announcement, marriage equality was legal in 19 states plus D.C. Under this latest action, marriage equality will now be the law in Colorado, Indiana, Oklahoma, Utah, Virginia, and Wisconsin. Assuming no state attempts to get a different decision from their circuit, marriage equality will likely go into effect soon in Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. If all 11 are added, the tally will be 30 states plus D.C. with marriage equality.

“We obviously need to get to a national resolution,  so the magic number is 50 states plus,” said GLAD’s Bonauto, “not 30.”

Openly gay U.S. Senator Tammy Baldwin (D-Wisc.) called the Supreme Court announcement Monday a “huge victory.”

“Love is love, family is family, and discriminating against anyone’s love, against anyone’s family, is not only wrong, it’s unconstitutional,” said Baldwin, in a press release. This is a huge step forward for our entire country being a place where every family’s love and commitment can be recognized and respected under the law.”

Monday’s announcement came by way of a routine, but highly anticipated “Orders List” on the first official day of the Supreme Court’s 2014-15 session. As is typical, the document does not include any explanation for the petitions for appeal were not granted. In order to take a case, four justices must agree before the high court grants a petition for appeal. The fact that the justices did not take any of the seven cases means that at least six of the nine justices refused to hear the appeals that sought to determine whether the marriage bans were constitutional. The fact that six justices refused the appeals in these seven cases bodes well for marriage equality should the court later decide to hear an appeal from marriage equality supporters, should another circuit uphold the constitutionality of marriage bans.

© 2014 Keen News Service. All rights reserved.

—  Tammye Nash

Utah becomes first state to file for cert

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U.S. Supreme Court

On Tuesday, Utah became the first state to file a writ of certiorari, commonly referred to as cert, with the U.S. Supreme Court to uphold its marriage ban.

In June, the Tenth Circuit Court of Appeals ruled Utah’s marriage ban unconstitutional, the first such ruling by a federal appeals court.

The state had three choices. It could have accepted the ruling and begun issuing marriage licenses. It could have could have asked for a hearing en banc, meaning a new hearing would have been held at the appeals court level, but this time heard by the entire court, rather than a three-judge panel. Or, as it did, it could have appealed to the U.S. Supreme Court.

Two other states that have received appeals court rulings— Oklahoma and Virginia — also may file writs of cert. Four additional states’ cases — Michigan, Ohio, Kentucky and Tennessee — were heard by an appeals court this week and may appeal to the U.S. Supreme Court once a ruling is handed down.

The U.S. Supreme Court is in recess and reconvenes the first Monday in October. That’s when they’ll begin to decide which cases to hear during the upcoming session. If a marriage case is heard, a decision isn’t expected until June 2015. Traditionally, the most controversial decisions are left until the last day of the session. The court may also decide not to take a case during the 2014-15 session to allow more lower courts deal with the issue before hearing a case the following session.

—  David Taffet

Lambda Legal holds victory celebration tonight at Hotel Palomar

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Every year about this time, Lambda Legal’s Dallas office holds a summer kickoff party. But there’s rarely been a season worth partying it up more than this one. With the recent triumphs in the U.S. Supreme Court, the gay rights group has a lot to celebrate — no wonder the theme is “Victory!”

You can be part of the festivities at Hotel Palomar’s Central 214, where cocktails and bites will be served while you learn about the details of the upcoming Landmark Dinner. It’s all taking place starting at 5:30 p.m.; you can get more information on their Facebook page.

—  Arnold Wayne Jones

Fate of Texas primaries still up in the air after SCOTUS hearing today

Anybody expecting to get some hint of resolution to the redistricting battle raging here in Texas following oral arguments over the issue today before the U.S. Supreme Court is probably disappointed, as it seems the justices want to see the Texas primary elections, already postponed from March to April 3, pushed back to an even later date.

Texas state Sen. Wendy Davis

According Associated Press legal affairs reporter Mark Sherman (as quoted on the Fort Worth Star-Telegram’s blog, PoliTex), “The justices discussed moving the primary date back further to give the courts handling different aspects of the case more time. ‘Why can’t this all be pushed back, and wouldn’t that eliminate a lot of the problems we are grappling with in this case?’ Justice Samuel Alito asked.”

And TheHill.com indicates that justices were not happy with either the map drawn last year by the GOP-controlled Texas Legislature or with the interim map drawn last month by federal judges in San Antonio, quoting Chief Justice John Roberts as saying during today’s hearing, “How do you decide between two wrong choices?”

TheHill.com also said, “Most justices indicated they thought both maps were unacceptable and could not be put into law without violating the Voting Rights Act.”

The Legislature’s map favors Republicans, especially in Tarrant County where Democratic state Sen. Wendy Davis saw her district taken away, with portions of it allocated to more Republican-leaning areas north and south of Fort Worth.

—  admin

D.C.: SCOTUS protects marriage (no quotation marks needed)

Good news for D.C.:

Bishop Harry Jackson’s appeal to the Supreme Court to let D.C. residents vote on marriage equality, which was approved there last year, has been rejected by the Supreme Court, the AP reports

SCOTUS REJECTS APPEAL FROM SAME-SEX MARRIAGE OPPONENTS IN D.C. [Towle]

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And with that, the last D.C. ditch is in Jackson/NOM’s rear view mirror. But don’t you dare think they’re planning to drive off into the sunset.




Good As You

—  admin

SCOTUS Caveman alert – Scalia: Women don’t have constitutional protection against discrimination

What’s next in the intellectual bloviating of conservative activist SCOTUS Justice Antonin Scalia – is slavery OK? We already know he doesn’t believe in the right for two consenting adults to engage in anything other than PIV sex.

He was interviewed recently and let loose this flaming pile of horseshite:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

Amanda Terkel at Huff Post covered the reaction to “Little Tony’s” latest belching of retrograde thinking.

For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Pam’s House Blend – Front Page

—  admin