"Obergefell's outrageous omissions" on Casetext

     One is quoted on Casetext, in one's article "Obergefell's outrageous omissions". Enjoy.

"Radical Faggot" vs. pride marches

     Breitbart, Black Lives Matter Protesters Disrupt Chicago Gay Pride Parade,

     Chicago’s 47th annual gay pride parade was disrupted several times by the usual city disruptions — gang activity, gunshots, and drunks — but the event was also disrupted by a car driving into a group of bystanders. Then there was an even larger interruption by “black lives matter” protesters.

, and which links to Radical Faggot (!!!), Happening Now–#BlackOutPride Action Disrupts Chicago Pride Parade,

...By 1973, only three years after the first march in honor of Stonewall, organization of Pride events around the country were taken over largely by wealthy cisgender gays and lesbians, looking to transform the march that began in New York from political protest to an opportunity for mainstream visibility. ...
     ...We are vocally rejecting Pride as a desecration of our history of resistance. We call not for its transformation, but reinvestment in our own communities and legacies of struggle.
     ...We cannot celebrate the passage of gay marriage, and predict that the next round of new laws will be about limiting the rights granted by marriage, especially for undocumented, trans, poor and working people. ...

     Interesting.

Late-June saintlist

     Saints Aloysius Gonzaga, Thomas More, Paulinus of Nola, John Fisher, Joseph Cafasso, Josemaria Escriva de Balaguer, and Cyril of Alexandria, around the time of the Solemnity of the Nativity of St. John the Baptist, please pray for us.

3-out-of-4 fun Friday

     One has recently enjoyed having submitted Court briefs (or parts of briefs) on the winning side in Zivotofsky, Walker, and King. But some other case came down today.
     3 out of 4 ain't bad.
     Polite congrats to the victors.
     Peace.

Sick victory in King v. Burwell

     Victory today for the sick, that is. Even if y'all just saw my King brief in my previous post about Walker--here it be again! [Wuz gonna post this on June 25, but was busy, so am posting at 12:03 a.m. on 6/26. Ed.]

     I guess this makes Obama the "king" now. (rim shot)

     Whoop.

Walker v. Confederate Sons, Charleston shootings, Confederate Waterloo, and "legal realism"

Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.

     From Strange Fruit, sung by Billie Holiday

     A. The Massive Quantum of Damage from the Confederacy

     The Confederacy was not good for America, especially African-American Americans. This obvious truth has profound resonances that not all folks may have realized yet, 150 years after the Civil War. Realizing the huge quantum of damage that the Confederacy did, including hundreds of thousands of deaths, the present author, while not writing a full amicus brief in Walker v. Texas Division, Sons of Confederate Veterans, Inc., at least mentioned that case in a few pages of his King v. Burwell brief, highlighting the danger from a Confederate-flag license plate. Walker was addressed there because there were issues of State dignity in both cases.
     In Walker, the fact that the Confederacy was an enemy power (of which Texas was a member), plus the current neo-Confederate and secessionist movements in Texas, means that a Stars-and-Bars license plate challenged the State of Texas' dignity and sovereignty, and even integrity. (Someone looking at a bunch of cars with Confederate plates, especially if the cars were owned by Texas government officials, might reasonably wonder if Texas were sliding back into an acceptance of Confederate values, white supremacy, etc.)
     The sovereignty issue also helps explain why the Walker dissent's using the Buffalo Soldiers example does not help their cause much. That is, the dissent complains that since some people were offended by a Buffalo Soldiers license plate, it is hypocritical to ban only a Confederate-flag plate. But though the Buffalo Soldiers' role in the "Indian Wars" is controversial, what is not controversial is that they fought for the U.S., not for a foreign or enemy power like the Confederacy.
     Sovereignty issues aside, Confederate flags might be just plain hurtful to African Americans (and others), "since the State printing a potential symbol of hate and racism on license plates could be a State-endorsed expressive harm against African Americans, many of whom are reeling from events like those in Ferguson, Missouri, and the death of black New Yorker Eric Garner from a police chokehold." (Author's brief at 17) Expressive harm, as in Bush v. Vera (517 U.S. 952 (1996)), meaning basically the ugly attitude or feeling expressed by a government action. The Confederacy was so hurtful, why continue the hurt now?

B. Gov't Speech, Private Speech, Schlemiel, Schlimazel, Zivotofsky, Kennedy

     One can always debate the exact rationale the Court used in Walker: they said that the license plate was government speech, hence, no First Amendment problem with a flag ban. The dissent said that license plates are really private speech and First-Am. protected; critics have said that maybe a hybrid analysis is better (plates are part gov't, part private, speech); etc. Rather than get hardcore into that debate, which could last forever, one shall just say that the Court's reasoning seems reasonable, especially given the multifarious alternatives available to the plaintiffs. E.g., if a Confederate Son wants to paint his whole trunk lid as a big Confederate flag (!), he may have the First Amendment right to do so.
     In the controversy covered by Zivotofsky v. Kerry, similarly, young Menachem Zivotofsky could set up a Myspace (formerly "MySpace") account and use that to declare that Jerusalem is really part of Israel. That way, he doesn't have to have "Israel" instead of "Jerusalem" on his passport.
     ...Speaking of Zivotofsky: why'd Justice Kennedy vote against the plaintiff in that case, but for the plaintiffs in Walker? Both are about plaintiff/s "hijacking" a State informational vector (passport, license plate) to send an offensive or damaging message. An answer may be that a passport is "consumed" (read by people) abroad--including any foreign-policy implications--, whereas a license plate is here in the good ol' USA.
     Kennedy, in his Ziv opinion, used a somewhat "functionalist" approach, noting that Palestinians protested the Congressional act in question, showing that offense and hurt had occurred. By contrast, Justice Alito in Walker says that "Texas has not pointed to evidence that these [Confederate] plates have led to incidents of road rage or accidents." Maybe, but it is a reasonable assumption that at some point, such plates could lead to an ugly incident. (Especially since the Civil War was the biggest "ugly incident" in our national history.)
     On that note:

C. The Walker Dissent's Factual Basis Is Now Evaporated, post-Charleston

     However, ironically, we don't have to speculate much more about the expressive harm emanating from the Confederate flag. The shooting in Charleston of nine African Americans at the Emmanuel AME Church, by Dylann Roof, who enjoyed posing with Confederate flags, has sparked a mass-removal of Confederate flags from public places, as noted on this blog here (flag) and here (license plates).
     Now that Roof's personal site The Last Rhodesian is not hosting all his photos, you can see him, at other sites, with gun and Confederate flag, and sitting on a car hood above a Confederate license plate. Walker dissenting Justices take note. (Justice Breyer, in the Court's opinion, mentions one curious license plate, "'The Iodine Products State' (South Carolina)". However, iodine, sadly, is not enough to disinfect all the wounds recently inflicted in that State...)
     Of course, the coincidence is astounding, that the Walker decision came out around the time of the shooting. It may be God's way of reminding us that social reality should drive the law, not just the other way around.

D. P.J. O'Rourke Meets the Walker Dissent, Wild Things Happen

     Speaking of "astounding": the Cato Institute does some good work, but their brief in Walker has to be seen to be believed. It has P.J. O'Rourke (of the National Lampoon etc.) and other interesting types as authors, and goes "all-out" on the free speech claim not only for the Confederate Sons, but also in the brief itself! including the F-word itself at p. 20. This Ayn-Rand-meets-Ferris-Bueller-meets-Tourette's-Syndrome vibe is a little too much maybe. Yours truly appreciates using some humor in briefs, but actual foul language is not needed.
     However, the Cato brief's "bad behavior" is useful in that it inadvertently makes its opponents' point, since that brief's dirty language shows that when you get on the crazy train, bad things happen.

     And without calling the Four Horsemen dissenting in Walker "crazy"--which could be deemed offensive--, their reasoning seems formalistic to the extreme, when some "legal realism", or just plain "realism", is appropriate.
     For example, if, per Alito, specialty plates are "little mobile billboards" completely up to the purchaser's taste and whim, then why couldn't a plate have a GIF of two (or more) people having a hardcore-pornographic orgy? Or how about the letters DIENGRS or DINGRDI, which look awfully like a death threat against black people? Or how about just plain N--GERS? Under the dissenters' rationale, what could stop that so-called "free speech"?
     In fact, why not a plate saying simply, "F-CK YOU"? Then maybe Texas wouldn't be known as the "Lone Star State", but as the "F-ck You State". Oy vay.
     Common sense is not a crime, and the dissent could've used more of it.

E. The Supreme Court's Ban of Demonstrations on Its Grounds

     Consistency might be good too. That is, hilariously enough, the Court is not too happy with free speech on its home turf, see Regulation Seven at Building Regulations. If they have a problem with that free speech or sign-waving, why would they have a problem with Texas restricting a rebel, officially-racist power's flag on a State license plate?

F. White Walkers/Walkers, Wise Latina, Wise African Americans

     And Justice Thomas, voting with the four "liberals" in Walker, may be suspected by some of having a better grip than many people do of understanding just how awful that Confederate power really was. But do we have to assume that he is a "wise African American", like Justice Sotomayor's "wise Latina"? Or is it the opposite, that the four white Republican Justices have a particularly unwise or isolated view of reality?
     Does that make them "White Walkers", to riff off a term from Game of Thrones? Feel free to speculate... But moving from "White" and "Walker" to Waterloo:

G. An Overdue Waterloo for Confederate Flags

     Just as the recent Juneteenth celebrates the Waterloo of slavery and the Confederacy (cf. this blog's 200th-anniversary-of-Waterloo posts here and here--and note that Napoleon banned slavery long before America or the British Empire did), we should welcome the Waterloo of Confederate flags in this country.
     Free-speech formalists and fanatics may lament the disappearance of that flag, since someone's opinion is being curtailed. But, in the real world, certain opinions, or forms of them (Confederate flags; burning crosses; calling someone a "slut" to their face) can be seen as harassment or even terrorism, which may chill more speech--and end more lives--than banning or discontinuing hate-symbol "speech" may do. Balances have to be weighed, but if "haters gonna hate", maybe they should to it with their own bumper sticker or website rather than dragging the State, and us taxpayers, into their ugliness.

Coda: Law and Love after Charleston

     Does the law have to be "nice", though? Does it always have to promote civility and decency? Maybe not, since it does protect ugly speech.
     However, when a State vector (license plate, passport) is used, then arguably the Law becomes, or is identified with, the hate. And that's just too much, frankly.
     The poem Law Like Love by W.H. Auden compares the two "big L's", noting that between them there's

A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.

     Pace Auden, though, maybe, after Charleston, we can keep faith in love, and law, with people of all races and backgrounds in this country. Maybe we can avoid any further of the "strange fruit" that Billie Holiday mentioned, if we can try to have a fruitful and non-violent dialogue in this country about the issues concerned. Much is possible. If we put forth the effort. Peace.

Bye Bye Va. Stars/Bars license plates

     Continuing our series about Confederate-flag vanishment: Wash. Post, Virginia’s McAuliffe plans to phase out Confederate flag license plate.
     First Virginia, tomorrow the world. Fab.

Bye Bye S.C. Stars & Bars

     N.Y. Times: "Nikki Haley, South Carolina Governor, Calls for Removal of Confederate Battle Flag".
     About time y'all.

Saintlist and Charleston

     Servant of God Orlando Catanii, Saints Albert Chmielowski and Romuald, and Venerable Matt Talbot, along with the nine dead in Charleston, please pray for us.

Juneteenth, memorializing the Charleston shooting

     Today is Juneteenth, celebrating the end of slavery.
     We had a funk night and heavy metal night in the last two weeks, but given the horrific shooting in Charleston, something more serious is in order: Mozart's Requiem Mass.

     Requiescat in pacem aeternam.

Waterloo's 200th anniversary

     June 18, 2015. 200 years later, the reenactment. 100 years from now, maybe another reenactment...or another battle?
     Napoleon was a bit of a tyrant, but if he'd won, would things have been much worse? seeing the various absolute monarchs opposing him, they often ruling over miserable serfs or slaves? In Heaven, maybe we'll find out how things would've played out.
     Prayers for the memories of all those at Waterloo, and elsewhere.

Britain's fabulous '15's, Waterloo and otherwise

     Our previous post on the Waterloo campaign of 1815, and the more previous post about Magna Carta 800, remind us that Britain has an interesting habit of doing well in years ending in "15". Besides the Mag Cart and Waterloo, there's also the battle of Agincourt in 1415: another victory against France, just like 400 years later! plus St. Crispin's Day, Shakespeare's Henry V, etc. Is there a pattern here?
     "God save the Brit!"

200th anniversary of Quatre Bras and Ligny

     On June 16, 1815, there were the twin battles of Quatre Bras, a draw (against the British) and Ligny, an inconclusive victory (over the Prussians), for Napoleon's French. Waterloo two days later...
     (If you wanna see the re-enactment of Waterloo, the tickets are sold out...but maybe extras will pop up! Waterloo 2015)

Happy 800th Magna Carta

     Following yesterday's Flag Day USA, we can also celebrate the end of the eighth century (or beginning of the ninth maybe) of ye olde Magna Carta, that great charter of liberty and dignity. (Which we mentioned in our recent article on CJ Roberts and Zivotofsky) Huzzah!

Mid-June saintlist

     Servant of God Joseph Perez, Saints William of York, Ephrem, and Barnabas, Blessed Yolanda of Poland, and Saint Anthony of Padua, around this time of veneration of the Sacred Heart of Jesus and Immaculate Heart of Mary, please pray for us.

RIP Christopher Lee; heavy metal nite at the BL

     Normally, one was going to do "Funk nite at the BL Pt. II" (following Part I), with the Gap Band's video of "Party Train"; but with the demise of Christopher Lee ("Dracula", "Saruman", "Dooku", etc.), one shall showcase some of his heavy metal music.
     That's right, he was a nonagenarian metalhead. Wow.

     Here are some snippets of his "Jingle Hell" and "My Way":

     C. Lee RIP. May heavy metal bells toll for thee.

Roberts' rumbles re Zivotofsky; and, written constitution for Israel?

     As noted recently, one is pleased that the Court has respected common sense in Zivotofsky. Lots of people have spilled lots of ink since the decision, so this post'll just largely focus on the Chief Justice's words. And later, a note about Israel's lack of written constitution.

     The Chief Justice seems to be borderline-irritated by the Government's arguments in Ziv. As noted in our previous post, “Ceci n’est pas une décision de reconnaissance”? or, Zivotofsky’s passport to postmodernism via Plessy and Palestine,

[A]fter Solicitor General Verrilli said that when Congress passed it, Section 214(d) caused trouble and distress among the Palestinians, Chief Justice Roberts fascinatingly opined,

          But that’s partly because the Executive Branch made such a big deal out of it. I mean, they issue a statement saying, this is unconstitutional and all that. They could easily have said, this is no big deal, they’re just letting whoever is born there pick the name they want to put on . . . nothing to see here, move on, and we’re proving that by going ahead and signing it. And over the intervening course, the executive has litigated this. It’s a self-fulfilling prophecy that it’s going to be such a huge deal.

But, epistemologically speaking: how does he know this . . . ? Does the Court have its own secret diplomatic corps? (“The Supreme Corps”?) Is the Court really supposed to be sua sponte conjecturing (“fact-finding sans citation”) about foreign affairs . . . ?

     True to that form, Roberts' dissent (joined by Alito) seemed none too pleased. He even used lots of italics. E.g., he says, the Reception Clause, "framed as an obligation rather than an authorization, appears alongside the duties imposed on the President by Article II, Section 3, not the powers granted to him by Article II, Section 2."
     But as the present author's brief in Ziv has noted, the division between "powers" and "duties" may not be that strictly demarcated. E.g., there is the presidential power of adjourning Congress, Article II sec. 3 cl. 3, and the duty-which-is-also-a-power, “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient,” id. at cls. 1-2 (“State of the Union” and “Recommendation” clauses).

     Roberts' opening paragraph wasn't too happy either, including, "Today's decision is a first: Never before has this Court accepted a President's direct defiance of an Act of Congress in the field of foreign affairs." But this begs the question, by accepting that the President has to "defy" Congress to exert her or his own powers in the first place. The Constitution is above either President or Congress; and it assigns Congress basically some limited, enumerated powers, as Thomas' concurrence/dissent, crackling in antagonistic dialogue versus the Scalia dissent, helpfully notes. Pace Roberts, it is Congress defying the President (and world opinion) about Israel/Jerusalem, that was the problem, that the majority opinion has now cured.

     Roberts gets back into "mega-italics" mode later on: "But even if the President does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition." And, "...the majority worries that there may be a perceived contradiction based on a mistaken understanding" of the statute, so that the majority is caving in to a "heckler's veto". But this gets into the Plessy v. Ferguson territory discussed in the present author's previous article, i.e., "Being deprived of Jerusalem is not insulting, it's just how those Palestinians choose to perceive it." Ouch. It may be a good thing that Roberts isn't Secretary of State.

     Finally, Roberts brings up Medellín v. Texas, 552 U.S. 491 (2008), saying that if the Executive can't "countermand a State's lawful action, [he can't] disregard an express statutory directive enacted by Congress, which--unlike the States--has extensive foreign relations powers of its own." The problem with this, is that, as the present author's brief notes, the execution of a Mexican national in this country, per Medellín, is a domestic matter compared to the foreign arena where the recognition issue of Menachem Zivotofsky's passport would be felt.
     All in all, not the greatest words that the Chief Justice has ever penned.

     --As for our second matter: since we're talking about constitutions and Israel, one notes that Israel itself was apparently supposed to have a constitution back in 1948. But it never happened.
     Having one would not guarantee paradise, but it might be a step forward. It would even help Israel avoid Zivotofsky-style problems itself, because, "Since Israel lacks a written constitution, the separation of powers between the three branches of government was never clearly delineated."

     The 800th anniversary of the Magna Carta is coming up in a few days, too, so, After 800 years, Britain finally asks: Do we need a written constitution?. That article notes that "a codified constitution . . . . if enacted, would remove Britain from a small, constitutionally starved club that includes New Zealand and Israel." Starvation is not always a good thing, so if the countries just mentioned got a written constitution, no more starvation.
     And if they're very lucky, they can ask John Roberts to come along and help them interpret it...............

*

Do they call it an asterisk, because you are at the risk of missing something if you don't follow where the asterisk leads?
Just a thought.
*

Capt. Picard torpedoes mandatory gay-wedding cakes

See Patrick Stewart backs bakery after 'gay cake' court battle,

Stewart argued that nobody should be forced to write specific text that they disagreed with.

"It was not because it was a gay couple that they objected, it was not because they were celebrating some sort of marriage or an agreement between them," said Stewart. "It was the actual words on the cake they objected to. Because they found the words offensive."

He continued: "I would support their rights to say no, this is personally offensive to my beliefs, I will not do it."

Highly logical, Captain.

Victory for common sense in Zivotofsky

     Zivotofsky v. Kerry, that is.
     Analysis in a few.
     Rejoice till then.

Saint nite at the BL

Saints Justin Martyr, Marcellinus and Peter, Charles Lwanga and Companions, Francis Caracciolo, Boniface, and Norbert, please pray for us.

Funk nite at the BL

     Enough "legal" stuff. Here's the Gap Band with

     

     Funk it up!

Lambda Legal done good in King v. Burwell

     This author doesn't agree too often with Lambda Legal, but, as mentioned in Pt. 2 of "Grand Theft Bonauto", he submitted a brief on the same side as them-uns at one point.
     That point (there may've been no other times) was in King v. Burwell, the "Pelosicare" subsidy case at the Supreme Ct. right now. Yours truly's brief said, as a reason to uphold federal subsidies to HHS (Dep't of Health and Human Services) -run health-insurance exchanges,

...It is interesting, though, that the Act may proportionately help minorities more than it helps others, in that there is sometimes an overlap between minority communities and low-income communities. Without being consciously mean-spirited, much less “consciously racist”, then, States that do not support health Exchanges may end up not supporting healthcare improvement for minorities and low-income people, as much as those States could do.

     Compare LL's brief, with its cover page listing an impressive number of allies,

     BRIEF FOR LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC., ASIAN & PACIFIC ISLANDER COALITION ON HIV/AIDS, BLACK AIDS INSTITUTE, GAY & LESBIAN ADVOCATES & DEFENDERS, GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY, HIV PREVENTION JUSTICE ALLIANCE, NATIONAL AIDS & EDUCATION SERVICES FOR MINORITIES, NATIONAL BLACK JUSTICE COALITION, NATIONAL MINORITY AIDS COUNCIL, AND LATINO COMMISSION ON AIDS AS AMICI CURIAE SUPPORTING RESPONDENTS

, and its body saying these words,

     C. Despite Tremendous Medical Advances, HIV Remains A Significant Problem For Communities Of Color, Which Experience Much Higher Rates Of Transmission And Substantially Worse Health Outcomes

...While medical advances against HIV have improved healthcare outcomes as a whole, all boats have not been lifted equally by this rising tide. The CHLPI Brief explains how essential the subsidies are to lower-income individuals seeking health insurance. This need is even more acute for people of color living with or at risk of contracting HIV. ...
     While the differences are somewhat less stark, other racial and ethnic minorities such as Latinos and American Indians and Native Alaskans (AI/AN), are also disproportionately impacted by HIV. ...
     ....
...Even if lower-income people do not constitute “discrete and insular minorities,” they are nonetheless largely unable to control the “political processes ordinarily to be relied upon to protect minorities.” United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); see also Bullock v. Carter, 405 U.S. 134, 144 (1972) (addressing “disparity in voting power based on wealth,” stating “we would ignore reality were we not to recognize that [the Texas filing-fee system] falls with unequal weight on voters * * * according to their economic status”)....

     So while LL and the present author agree to disagree on some things, we can agree to agree on others. Sounds inspirational? --Have a good night.

Dorf's faux-mini-Platonic dialogue, the Bonauto

     On the note of "Great minds be thinkin' alike": while yours truly has been writing "Grand Theft Bonauto" parts un et deux, it looks like law prof Mike Dorf wrote (tho the present author didn't see it until after he wrote Part I of GTB), on the same day as the Obergefell oral argument (fast!), a teeny weeny Platonic dialogue--about that oral arg--called the Bonauto!
     So while one oneself has written "Alito's Obergefell errors/omissions on Plato and gays", other bros writing about Plato or Bonauto deserve a hey-ho also. Go-go enjoy!

Part II of: Grand Theft Bonauto?; or, John Bursch & the "dignity" problem

Intro

     This second part of "Grand Theft Bonauto?; or, John Bursch & the 'dignity' problem" (following Part I, and also following "Alito's Obergefell errors/omissions on Plato and gays"), has been a little delayed, partially because it's longer than'd been planned. That length also supports division into parts:

A. Problems of a "Johnny One-Note" Strategy

     We note, first off, that Bursch of Michigan--despite his manifold virtues and accomplishments--used a "one-note", very slender oral litigation strategy, which is likely to invite punishment (say, losing the case) from courts. He said, "But the government's sole interest in these cases isn't about love. It's about binding children to their biological . . . moms and dads if possible[.]" But but but, to say you have a "sole interest" may often be bad in litigation. Eggs in one basket, etc.
     For example, let's say Joe can sue Jim for a) fraud, b) libel, c) assault, and d) spitting on Joe's dog. Dopey Lawyer, who Joe somehow hires, says, "Well, let's just use the last claim, about your dog, ...but not anything else!" Good idea?
     Or imagine a horror movie where the Final Girl is fighting "Jason Krueger" or whomever. She often has to go through multiple death-dealing maneuvers to finally beat the ghoul, e.g., not just a Molotov cocktail, but also a chainsaw, a Louisville Slugger, a pickup truck (to run over Jason K., repeatedly), etc. A "one-note" strategy might not do it.
     Binding children to biological moms/dads is a fine thing, but there are many other interests at stake in same-sex-marriage issues. For example, if biological moms/dads were all that counted, then would adoption be banned? Or might having a female and male parent be important, even if they aren't biological? Etc.

     Recapping/expanding some of Part I: when Justice Kagan said, "..are you saying that recognizing same-sex marriage will impinge upon[,] will harm that State interest in regulating procreation through marriage?", and Justice Ginsburg pressed the point, Bursch responded, "it has to do with the societal understanding of what marriage means." And Justice Sotomayor said, “...even under a rational basis standard, do we accept a feeling?” (See "More Than a Feeling" by the band Boston. ...If the three female Justices had stood up and started a cappella singing that song, this author would've enjoyed it.)
     Justice Breyer later offered the epic, "What's the empirical part of what you just said?" And Bursch didn't offer one. Though various briefs for his side mentioned, e.g., the depressed marriage rates in nations that've adopted same-sex marriage, he didn't mention them--a very strange omission. In his defense, perhaps he was under great stress.

     So why Bursch's overfocus on the "redefining marriage" thing? ...There is an essay/law review article (later a book) called "What Is Marriage?", which has some value but has been grossly overrelied upon by the same-sex-marriage-ban side, some of whom may be intellectually lazy and think citing that book and its ideas--such as how redefining marriage may just dissuade folks from traditional marriage--is enough for an automatic win over the other side. Hasn't worked. (The present author's pre-certiorari brief in Herbert v. Kitchen, the Utah same-sex-marriage case, was the only one that asked for the Court to reject, or delay, certiorari, and the only one the Court listened to: and that brief mentioned specifically the weakness of the "redefining marriage could maybe sorta kinda cause some problems" argument, but the States' attorneys did not seem to learn that lesson.) Also, the fact that that essay opposes same-sex marriage but doesn't mention the word "sodomy" even once, is a surprising omission.
     So what should/could Bursch have done differently? One can speculate, but here are some possibilities below.

B. Legal Jiu-Jitsu: Using the Other Side's Admissions

     ...One good way to litigate includes using admissions by the other side, or by sources that the other side tends to endorse. This was possible here, in that three notable biological differences of same-sex couples from diverse-sex couples (natural fertility/infertility; disease- or injury-proneness of sodomy compared to heterosexual relations; having/not having female and male parents/role models for children) have had natural allies of Petitioners effectively admitting them for a while.
     This author covered that idea in his brief for the cases, but here presents a shortened and updated version, also covering some other issues. (A super-shortened version is in this author's USA Today 4/30/15 letter to the editor, in Do gay marriage bans hurt families?, which rebuts Andrew Koppelman and Ilya Somin’s USA Today article “Gender, the gay marriage fight’s missing piece”.)
     Speaking of gender:

1. Sex discrimination

     Koppelman and Somin said that same-sex-marriage bans discriminate by gender, and offer the example that if Anne can marry Bob, but Charles can’t, that's discrimination. However, Bob and Chuck form a pair, which has different fertility, AIDS-proneness, and mono-gendered characteristics from the bi-gendered pair of Anne + Bob.
     Similarly, just because a wonderful recipe wouldn't work well if it used paprika instead of cinnamon, that doesn't mean that one is "prejudiced against paprika" by not using it in that recipe. (Note that a biracial heterosexual couple wouldn’t have those issues above, infertility etc., so the bogeyman of long-gone interracial-marriage bans is irrelevant as an objection to same-sex-marriage bans.)
     After all, marriage is a long-defined and long-honored social role, not just an individual whim. Saying traditional marriage “discriminates by gender” is like saying that a director of Othello “discriminates” if he doesn't hire a two-foot-tall white woman auditioning to play the magnificent Moor of Venice. (The director could hire her...but is he/she obliged to?)
     And as Ballard v. United States (1946) proclaims, “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both[.]” (Unsurprisingly, plaintiffs’/Petitioners' briefs don’t mention Ballard to the Court.) So, left-of-center types who support gender-desegregated juries, should also want gender-desegregated couples, more on which infra.

     Same-sex-marriage bans may “discriminate”—if at all—in the same way that public bathrooms for men “discriminate” against women; maybe on the surface, but not really in any meaningful sense. But the one way that same-sex marriage arguably does discriminate vis-à-vis gender, is how it treats the children of same-sex couples.
     That is, Brown v. Board of Education (1954) established that segregated upbringings are damaging; and the ACLU has sued about sex-segregated classrooms. How, then, are 18 years of a sex-segregated upbringing with same-sex parents not remotely, conceivably, able to damage children? (As the ACLU should admit, even though it supports Petitioners.) At least, a state’s people should be able to vote on this. (Even assuming that the sex-segregation is much less damaging than the loathsome racial segregation referenced in Brown, still, it may be quite damaging.)
     This author’s own amicus brief notes that even if same-sex-marriage bans somehow cause constitutional damage, by disadvantaging same-sex couples: overturning the bans could do the same thing, e.g., cause constitutional damage by stripping children of either a mother or father through state action. Since same-sex couples can move to another state and marry, but their children can’t easily divorce their parents and get a mom or dad, the adults can avoid damage more easily. Thus, the Court should uphold traditional-marriage laws, since they protect the more vulnerable.
     Since the benefit of having both a mother and a father has been recognized since the Fifth Commandment, “Honor thy father and mother, that thy days may be long in the land”, even the non-religious may see a point in keeping marriage dual-gendered.
     And speaking of dual-genderedness:

2. Gender-diverse parents as serious state interest

     Even those who claim sex-discrimination or some other quasi-suspect classification (e.g., sexual-orientation discrimination, if somehow considered quasi-suspect) occurs re same-sex marriage, must admit that if the laws meet “heightened judicial scrutiny,” they’ll pass. And the same-sex-marriage bans easily do meet that scrutiny, one may argue. For example, under Grutter v. Bollinger (2003), diversity, including gender, is a compelling state interest, enough to pass strict scrutiny, not just heightened/“intermediate” scrutiny.
     It'd be absurd to say that gender diversity in one semester of community college is “compelling,” while 18 full years of being raised by gender-diverse parents is not equally compelling. (Some same-sex-marriage advocates, astonishingly, say it’s not even a rational interest to have gender-diverse parents; this is schizophrenic in the light of Grutter.
     And any wags who ask, “So could the government compel racially diverse marriages?” wouldn’t be accounting for the innumerable number of races—making it impossible to administer compulsory race-diverse marriages—compared with the existence of only two genders.)

     Left-of-center types who like affirmative action, should logically admit that the Grutter diversity rationale can support same-sex-marriage bans.

     And opposition to mandatory legal same-sex marriage does not show “gender stereotyping” either. It doesn't stereotype to say that two men can't breast-feed a child, and that that may hurt the child, see, e.g., Extended breastfeeding linked to higher IQ and income in study. Indeed, if children have “nontraditional-occupation” parents, say, a homemaker father and a Marine Corps sniper mother, that may break down gender stereotypes.

3. Fertility as serious state interest

     Fertility is another compelling state interest: as same-sex-marriage supporter Michael Boucai admitted in a 2012 law-review article, same-sex-marriage bans channel bisexuals to heterosexual marriage, easily affecting the fertility rate. And millions of American bisexuals add up to a big effect on fertility. (The argument that infertile, chaste, or elderly heterosexuals are allowed to marry is irrelevant; are they going to be policed for fertility, chastity, or being too old? See, e.g., this recent article, 65-year-old teacher set to be mother of quadruplets.)

     Jeremy Hooper's "Good As You" article "'Children of gays' lawyer to SCOTUS: Ban same-sex marriage so bisexuals will marry heterosexually" attacks the present author's rationale, calling it "Another unserious idea that is not open for consideration among serious people. A waste of everyone's time." The only problem is that same-sex-marriage-supporting Michael Boucai thought of the idea (as noted in the present author's Obergefell brief), so that Boucai should be attacked, not the present author. (Atheist Nexus also has some criticism, Bis marrying opposite-sex spouses a "compelling state interest"!?, of yours truly over the "channeling bisexuals" argument.)

     Fertility also comes into play in the following consideration:

4. AIDS prevention, and avoiding sodomy-norming, as serious state interest

     Yet another state interest, maybe even compelling, is not norming sodomy as a state-endorsed and state-subsidized practice. This may not be the most happy-time and politically-correct thing to say; but as noted in our previous post "Queer" protesters claim supreme inclusivity for "anal", with said protesters saying “Anal is the most inclusive form of f*cking” and “There is a Future in Sodomy”: if they want to bring up those kinds of topics, then why can't others? (And religion or morals aren't even the issue here, necessarily: the ban on men-who-have-sex-with-men giving blood has a real epidemiological justification, re the spread of AIDS, etc. Cf. this article re "The HIV/AIDS epidemic caused by commercial blood donation in rural Henan Province of China in the early- to mid-1990s".)
     Sodomy can be horrifically dangerous, e.g., a statistically huge vector of HIV dispersion, not only for men (AIDS), but also for women, who have died from the practice called “fisting”. Private, adult, consensual, non-violent, non-commercial sodomy is one thing, protected by Lawrence v. Texas. But for the State to tell the populace, including impressionable young children, that it is a good idea, will tend to promote that kind of behavior, easily impacting fertility and AIDS rates.
     The youth AIDS rate is bad enough, with young gay and bisexual men showing a 22% increase in estimated new HIV infections from 2008 through 2010; but in addition, children raised in same-sex households “should and do seem to grow up more open to homoerotic relationships....[C]hildren of lesbigay parents appear to express a significant increase in homoeroticism”, as pro-same-sex-marriage researchers Judith Stacey and Timothy J. Biblarz candidly observed. (Their honesty is appreciated, in a world where deleterious effects of same-sex marriage are often swept under the rug.)

5. All of the above

     So rather than just putting forward a wafer-thin "Redefining marriage might sorta discourage linking kids to biological parents" rationale, Michigan's attorney might have mentioned all the points above. Again, multiple bases, multiple compelling state interests, as many as reasonably possible, should've been mentioned. If one rationale doesn't work, another might.
     Just bringing them each up briefly wouldn't have taken too much time. It'd have been a better use of Bursch's time than telling Justice Kennedy "I think you're missing my point", or giving Kennedy a long, legally-erroneous lecture on how marriage doesn't actually confer dignity. It was unpleasant to witness that train wreck of an oral argument, and the present author hopes victory can occur for Michigan's side despite it--unlikely as it may be.

C. Miscellaneous questions Bursch could've answered differently

     Besides the framework above (issues of fertility, AIDS, gender-diversity, etc., that Bursch could've brought up), we shall mention some other particulars.
     Justice Ginsburg asked whether a 70-year-old couple should be given a marriage license, occasioning laughter. But what's not funny is that, as noted above, a 65-year-old woman recently gave birth. As medical technology advances, maybe a 70-year-old one will too.
     When Justice Kennedy said, "And -- and under your view, it would be very difficult for same-sex couples to adopt some of these children. I -- I think the argument cuts quite against you", Bursch could've noted that there may be an immense backlog of heterosexual couples waiting to adopt, see, e.g., this article claiming "In the USA, there are approximately two million infertile couples waiting to adopt", and this report, saying "there are 115,000 children in public foster care awaiting adoption", with 115,000 being much smaller than two million. So maybe if same-sex couples couldn't adopt, that might not cause a huge problem.

D. Question 2 snoozefest

     So much for Bursch and the first question in Obergefell. The second question, about recognizing other States' same-sex-marrieds, seemed to produce little sizzle, from accounts this author has read. Indeed, of the hour that Joe Whelan and Doug Hallward-Driemeier (the States' and the plaintiffs' lawyers, respectively), only 50 minutes were used (11:39 a.m.-12:29 p.m.), as the transcript notes. Ouch. So much for taking "the biggest case ever" seriously.
     The argument was even confusing, if judged by Whalen repeatedly saying things like, "I'm not sure if I understood the question correctly, Your Honor." One of the few interesting notes was the Chief Justice saying to D. H.-D.,

     I think your -- your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can't do this, we've never done this before, recognized same-sex marriage.
And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States. . . . You've got to decide one or the other if you win.

     Does that augur well for the States winning at least one of the cases? Time'll tell.

E. The Ireland same-sex-marriage referendum

     There's not enough room to discuss it here, except briefly to say that the Irish court's KAL case around 2006 said that the Irish people should decide same-sex-marriage issues democratically. Since Ireland is a constitutional democracy (as Justice Kagan called America in the oral arguments), presumably we too in the USA deserve a democratic choice.
     (If this author had the time, he wouldn't mind writing a book called something like, “Fifty Shades of Gay Marriage: or, Trusting Each State’s People to Decide”. If Ireland can decide democratically, why can't Idaho?)

F. Lawrence of Homophobia: or, Are There Ways to Agree with Gays on Other Issues besides SSM?

     This section title is an obvious pun on "Lawrence of Arabia" and also Lawrence v. Texas, and asks, inter alia, whether it makes you a """homophobe""" to oppose mandatory national same-sex marriage. If so, then SSM supporters, world-class humanitarian Jimmy Carter and law professor James G. Dwyer, are "homophobes" (click the links to confirm their support for SSM but not for constitutionalizing it), which sounds sort of strange. "Dirty Bigot Jimmy Carter". Hm. (And don't forget, Sandra Day O'Connor, in her Lawrence concurrence, said there are valid reasons to uphold traditional marriage. Is she a "bigot" too?)
     Similarly, Croatia has decriminalized homosexual activity since 1977, 26 years before Lawrence, but bans SSM. (Though there is a "life partnership" for same-sex people; about these Croatian issues, see http://en.wikipedia.org/wiki/LGBT_rights_in_Croatia.) So can we really call Croatians "bigots"?
     What comes closer to homophobia, of course, is that many people on the States' side in Obergefell...also supported Texas' side in Lawrence v. Texas. Whoops. Not a good idea.
     They may've had good intentions, but the idea of arresting gays for sodomy (or anyone for sodomy, though heteros would likely not've been arrested) sounds like something out of Nazi Germany and the pink triangles. And this author wonders whether some of the erroneous, maybe-even-hubristic thinking that led folks to choose the losing side in Lawrence, maybe persisted and made them think they wouldn't have to work hard to do a good, thoughtful job in Obergefell. There has to be some reason that the States have done such a terrible job in the SSM battles, after all.

     However, for people of conscience and open minds, there may well be room for common cause with gays about other issues besides SSM: e.g., illegalizing the abortion of embryos/fetuses who may test positive for either HIV or "gay-indicatory genetic factors", i.e., DNA markers showing the kid will likely be homosexual. There's even a gay pro-life group, PLAGAL.
     Some pro-life folk would shun any dealings with them, "because they're gays", but those really interested in saving the unborn from destruction via gay-selective abortion (which form of abortion resembles race-selective, or gender-selective, abortion, which pro-lifers are trying to illegalize) might want to rethink their position, if they really think gays are too "unclean" to work with. As the saying goes, we're all sinners, all of us.

Outro

     That's it for now; hope it's food for thought.--The next post, or at least a near-future post, will be about something this author actually agrees with Lambda Legal on, and maybe even submitted a brief on the same side as they did. Be well, and stay tuned...

Jenner's gender jump

     This June, Bruce Jenner is now Caitlyn, spelled almost like Kaitlyn of "The Bachelorette". Quite a change, and coming to a reality show and all the modesty and privacy that betokens.
     "For a transgender person to step into the world as his or her authentic self is a moment of tremendous freedom," added Nick Adams, GLAAD's director of programs for transgender media. "The world can now see what Caitlyn Jenner has always known, that she is -- and always has been -- a woman." As per No more Bruce: Meet Caitlyn Jenner. So Jenner was never a man at any point? Well.

     Here's a post, Dear Bruce Jenner: Please Consider Your Children’s Emotional Well-Being, from one of this author's clients, Denise Shick, about Jenner's gender jump. Hope everyone's well-being turns out well.