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Posts Tagged ‘John Roberts’

So we’ve finally come to the end of the debate over marriage equality and our gay friends Imagehave won an unquestionable legal right to marry. Right?

Well, no.

Wednesday’s historic Supreme Court decision invalidating the key part of the Defense of Marriage Act, which defines marriage as being between a man and a woman, has likely set the stage for a series of arguments in the state houses over the issue. The majority opinion in the United States v. Windsor, written by Anthony Kennedy, essentially says that the Defense of Marriage Act for no good reason allowed the federal government to stick its nose into a state issue, the affairs of family, to single out one group and injure a class of people that one of those states, New York in this case, sought to protect. As he put it:

“DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

What the decision doesn’t do, however, is make gay marriage the new law of the land. By making this a state issue, the court left open the unhappy idea that it might not strike down gay marriage bans in less liberal states.

Look at the decision on California’s gay marriage ban handed down the same day. In that ruling the court decided not to take up an appeal on California’s law, but this was an issue of standing, not the constitutionality of criminalizing gay nuptials. The state of California had refused to defend the law any longer, and the gay marriage opponents who appealed had no direct stake in that appeal, so legally the Supreme Court didn’t have to argue the substance before it simply passed the hot potato right into the garbage. (The majority opinion in that vote offered an interesting Red Rover game in which Roberts stood alongside justices Ruth Bader Ginsburg and Elena Kagan against Sam Alito and Sonia Sotomayor, crews as motley as one could imagine.) The decision in Windsor also found an executive branch–Barack Obama’s–unwilling to fight for the DOMA, so a party directed by Congress had to get involved.

Of course, the standing issue is important to this argument for myriad reasons. Standing means that a plaintiff must have been directly harmed or have some connection to the harm caused by a law. In the case of gay marriage opponents, that applies … um … never. As I’ve joked here before, gay marriage does no harm whatsoever to straight people other than directly offend what must be their smutty imaginations. That fallacy was again voiced relentlessly today as religious conservatives again said that allowing gays to freely marry somehow deprived them of freedom. I guess because the act contradicts what they believe, it is a form of mind control. I’m stretching there, but it’s hard to make sense out of such a brutally senseless argument.

But as glib as I’d like to be that questionable legal representation produced a happy effect, Emily Bazelon at Slate, among others, asks a fair question: Is it right that the will of California voters was subverted in this case because their state government refused to fight for a law they passed? Would our joy at seeing gay haters’ asses handed to them on an issue of standing be so funny if this were, say, a water pollution issue that our state refused to fight?

But I don’t wish to be ambiguous. I’m happy for the decision today, that five of the Supreme Court justices called the Defense of Marriage Act what it was–malice against a group of people. A law that disapproved of a class of people one state, New York, was trying to invest with some status and integrity.

You can, of course, read Justice Antonin Scalia’s whining dissent, filigreed with such thumb-sucking lines inveighing against the “black-robed supremacy” of a court gone out of control. It is more tired rhetoric about judicial activism, something Scalia, whose willingness to become activist in defense of conservative causes, ought to be too embarrassed to keep saying out loud by now.  Then there are predictable screeds by National Review editors who try to subvert the logic of tolerance by saying gay marriage proponents are somehow full of contempt. See what pretzel logic man Rich Lowry did there? I’m not the one hating the people I hate. It must be something they are doing. The people I hate must be causing it somehow.

That attitude was institutionalized by the DOMA. That attitude spawned a law of the land. That attitude was why the law came crashing down under its own weight.

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… Or maybe we can take the “quotes” off Obamacare now, a sneering portmanteau word used almost exclusively by detractors of the 2010 Patient Protection and Affordable Care Act. Now that the law has been upheld by the Supreme Court, perhaps the pejorative meaning will someday disappear, and posterity will be kinder to the word, a herald of a time when millions of people got health care insurance, and it will cease to be used as a horrible shibboleth by a certain kind of American breed who insist that suffering is the mandatory price of freedom.

At the very least, this morning, we have avoided the distasteful sight of watching a small number of partisans carry on in front of the world and actually cheer for the vulnerability and frailty of their fellow countrymen. “Let ’em die,” as Republican conventioneers like to yell at the uninsured, ought to be the standard for sneers, not “Obamacare.”

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(Originally posted Wednesday, January 21, 2009)

Washington, D.C. (API) George W. Bush, the 43rd president of the United States, began his third term of office Wednesday after President-elect Barack Obama flubbed the oath of office he was to repeat after Supreme Court Chief Justice John Roberts.

“My fellow Americans,” said Bush. “I believe things happen for a reason. And while I am not sure what the reasons were for this gaffe during inauguration day, I want to assure you that order and the rule of law will win the day.”

“I swear to execute … no to faithfully execute,” said Roberts as he administered the oath. A slightly confused Obama tried to reinsert the incorrect version, and Roberts followed with another hypercorrection that legal scholars now say has made the president’s swearing in almost completely invalid.

“If he didn’t say it, he ain’t it,” said Constitutional scholar Jeffrey Rhoades. “I can’t put it more simply than that.”

Roberts visited the Oval Office late Wednesday night hoping to re-administer the oath, but by that time, Bush had already settled in for his third term.

“Through this trying time I hope to lead the American people with steadfastness and resolve and strength of character. You spoke out strongly for voice of change. And even though, sadly, that change did not come, I hope you’ll join me as we continue four more years together seeking peace, prosperity and the conquest of our enemies as they stand over seas of sweet crude oil.”

Millions of attendees at the inauguration burst into tears.

“It’s just 35 words for crying out loud,” said Bill Clinton. “How did two grown men, both of them Constitutional lawyers manage to get us all into this colossal screw up?”

“It truly is sad,” said Bush. “I’ve been needled for some bad grammatical choices in the past. But none of my gaffes endangered the country or upended the poltical order.

“I don’t mean to get all parliamentarial here.”

“It truly is a cock up of huge proportions,” said noted wit and political critic Christopher Hitchens. “And by the way, nobody around here knows what the the true meaning of irony is but me.”

Bush plans to use his next four years in office, to attack Iran, embolden Israel to attack Syria, destroy the Antarctic ice shelf with bunker buster bombs, and continue the No Child Left Behind law.

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