July 15, 2015 – Arsenal For Democracy 134

Posted by Bill on behalf of the team.


Topics: Supreme Court rulings on marriage equality and Obamacare, order on Texas abortion clinics law; Puerto Rico and Greece debt crises. People: Bill, Kelley, and Nate. Produced: July 13th, 2015.

Discussion Points:

– U.S. Supreme Court: What are the implications of major rulings and orders on marriage equality, Obamacare, and reproductive freedom?
– Debt Crises: What’s next for Puerto Rico and Greece?

Episode 134 (47 min):
AFD 134

Related Links

AFD by Kelley: “The Supreme Court Order You May Have Missed”
AFD by Bill: “Marriage Equality Day”
AFD by Bill: “A Sinking Feeling in Puerto Rico”
AFD Posts about Greece


RSS Feed: Arsenal for Democracy Feedburner
iTunes Store Link: “Arsenal for Democracy by Bill Humphrey”

And don’t forget to check out The Digitized Ramblings of an 8-Bit Animal, the video blog of our announcer, Justin.

Marriage Equality Day

It’s a little hard to put into words my thoughts and feelings about the fantastic Supreme Court ruling today on equal marriage rights for same-sex couples. On the one hand, I worked (eventually full-time) on the issue for over two years in Delaware — something I’m very proud of — but on the other hand, I’ve been out of that line of work for almost as long (and so the big victory I was most involved in happened a couple years ago rather than today). I also definitely remain very aware how many other LGBTQ human rights are yet to be secured in many states — particularly on employment discrimination and life or death matters.

Still, the achievement today is not nothing. Far from it. It’s not just abstract that some happy young couples — congratulations! — can finally get married. There are a lot of older families that will be more legally and financially secure than they ever have been. That’s a really big deal. So this ruling is very important to celebrate today, even if there is a long way still to go in other areas. It’s a little disappointing to see a genuine achievement played down in some circles. It’s not a capstone, but it’s still significant.

We may also be in for a bumpy ride on implementation. Some folks and officials are reacting with almost as much resistance as they did to the split Roe v. Wade abortion legalization ruling in 1973 or to the unanimous Brown v. Board of Education ruling of 1954. I’m cautiously optimistic that that initial reaction will subside in the coming days, weeks, months, or maybe a year. But many social conservatives know from those two “controversial” rulings that if they resist hard enough, the Supreme Court has little way of compelling compliance and the effective impact is sharply reduced. That’s very troubling. I hope it doesn’t pan out that way.

For now, however, I’m celebrating and remembering some of the highlights of the small part I played in this some time ago. It was the right thing to do, even when it wasn’t wildly popular, and I’m glad things moved quickly enough that I could see this ultimate outcome not very long after. Sometimes governmental processes move too slowly to see citizen actions having an impact. It’s cool to see it happen this time.

Dear Alabama, don’t make us come back down there.

Approximately two-thirds of Alabama counties are refusing to issue same-sex marriage licenses despite the U.S. Supreme Court confirming the end of the Federal stay on a ruling striking down the state’s constitutional ban on same-sex marriage. This refusal is largely based on the state strength of notorious Christian conservative Roy Moore, who is trying to block the Federal ruling:

[Alabama Supreme Court Chief Justice Roy Moore] told county judges that a federal judge’s decision striking down the state’s ban on same-sex marriage was not binding on state courts and had caused confusion in the state.

Probate Judge Al Booth in Autauga County said his office will take applications for same sex marriages but won’t issue licenses until he gets clarification.

“I have the man who runs this state’s court system telling me not to issue marriage licenses for same-sex couples,” Booth said. “I have the federal judiciary telling me I will issue marriage licenses to same-sex couples.

“I want to uphold my oath. But what law do I follow?” he said. “Which constitution do I uphold?”

Uh, here, allow me to help you with that question, your honor. The answer is the U.S. constitution. That’s which thing you uphold when it conflicts with literally any other constitution or law in the United States.

This is based on two very clear principles:
1) The Supremacy Clause of Article VI of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.


Let me repeat it so it’s even clearer: “This Constitution […] shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”

2) The U.S. Civil War:
We won it. You lost it. That ended the debate. State sovereignty isn’t equal to Federal sovereignty. The end. Be glad we’re magnanimous enough let you keep your weird Confederate motif on your state flag.


Texas bill would nullify Federal court orders on marriage

I’m not sure why anyone would think this could work after the U.S. proved state employees could not unilaterally refuse to implement Federal court orders by deploying the U.S. Army 101st Airborne Division paratroopers to Arkansas to enforce school desegregation, but one very petulant Texas legislator aims to block state implementation of same-sex marriage if the Federal courts (including the Supreme Court) order licenses to be issued and/or recognized from other states. KVUE Austin:

Dubbed the “Preservation of Sovereignty and Marriage Act,” House Bill 623 says state and local government employees “may not recognize, grant, or enforce a same-sex marriage license.” If they do, “the employee may not continue to receive a salary, pension, or other employee benefit at the expense of the taxpayers of this State.”

The bill’s author, State Rep. Cecil Bell (R-Magnolia), says the Texas Legislature doesn’t work for the federal courts — which have no business striking down laws passed by Texas voters.

“Because we’ve seen activist federal courts, it’s important that we as Texans take steps to make certain that we’re able to protect traditional marriage and traditional values,” Bell told KVUE Friday. “One of the ways that we can do that is through the power of the purse.”

The result could be a potential quandary for government workers: Follow a court order or keep earning salary. Asked whether the bill would put government employees in a position of having to choose between being subjected to a federal lawsuit or losing their pension, Bell suggested employees would continue earning as long as they’re following state laws.

“I don’t see it as losing their pension except during the period of time which they are outside the [state] laws,” said Bell.

The full text of the bill also threatens the same consequences to any state employee or official who tries to violate or interfere with this new provision, meaning that all state officials — including the governor and attorney general — might face consequences (from whom is less clear) for giving an order allowing clerks to ignore this section as de facto unconstitutional and proceed with following Federal court orders to issue or recognize same-sex marriages.

I hope this bill doesn’t have a chance of passing, but if it does, it will put a lot of people in a very precarious position, financially or legally. It is also blatantly unconstitutional.

“I don’t see it as a threat at all,” countered Bell, who maintains his target is activist courts — and he has his colleagues’ support. “I think it is the ability of the state legislature to try to make certain that we affirm the sovereign right and sovereign nature of the state.”

It’s just another attempt to institute backdoor secession from Federal authority.


Massachusetts Republicans are a fringe party

While I recognize that state party platforms are often pretty meaningless and individual candidates often don’t agree with them anymore, I think it’s still worth noting — nay, stopping still to stare in open-mouthed amazement at — the fact that the Massachusetts Republicans’ 2014 platform is, drumroll please…

  • opposed to same-sex marriage
  • opposed to abortion rights

Let’s check in on where folks in Massachusetts stand on that:

a September poll [in 2013] found that 85% of Massachusetts voters saw a positive or little to no impact from gay marriages in the commonwealth. In the poll, voters in the state support legalizing gay marriage 60% to 29%.

In the same poll, if you go to the crosstabs, you find

  • 78% of Democrats say same-sex marriage should be allowed
  • 53% of independents agree

The platform is actually consistent with the 60% of Massachusetts Republicans saying they do not think same-sex marriage should be allowed…but that’s in large part because everyone else became independents or Democrats to escape the crazy, leaving the Republican Party to be a mirror opposite of state opinion.

And more importantly, identifying with the 29% of overall voters who oppose same-sex marriage — in a state where 85% say it’s been a positive or had no impact a decade after legalization — is not a good way to get Republicans elected in the state. Without significant support from Massachusetts independents, who tend to be fiscally conservative but socially indifferent, Republicans remain a tiny majority out of power.

It seems kind of needlessly self-destructive too, including that in the platform, considering even 61% of Republicans in that poll admitted same-sex marriage had had no impact on their lives.
Read more

Jamming the works in Indiana

After much suspense since Republican legislators in 2011 passed a bill to put a constitutional amendment against same-sex marriage on the Indiana ballot, marriage equality supporters could breathe a sigh of relief today. The legislature, still firmly Republican and opposed to marriage equality, blocked its own momentum on a technicality which will delay the effort by at least another two years — possibly giving more time to stop it for good.

Indiana requires legislators to pass exact same text in two different legislative assemblies before a constitutional amendment can go on the ballot. 2011’s measure, much like the North Carolina Amendment passed in May 2012, banned both same-sex marriage and civil unions. This was extreme at the time but seems to have been a bridge too far for legislators just a few years later. Earlier, the House passed a different version of the text (dropping the civil unions prohibition), and today the Senate approved that new text without amending it back. There did not appear to be significant objection within the legislative membership to keeping out the old version, even if it meant a delay.
Read more

Marriage equality comes to Utah (for now)

It’s been a good week for marriage equality. On Thursday, New Mexico’s state supreme court delivered a unanimous opinion in favor of marriage equality statewide — not a big surprise given that half the population was already living in counties issuing same-sex licenses due to the lack of a law one way or the other. Then, on Friday, neighboring Utah got a big surprise when a Federal district judge ruled that their 2004 State Constitutional Amendment against same-sex relationship recognition was unconstitutional.

This is the first Federal decision at any level on the issue since the Proposition 8 and DOMA rulings were handed down this year. You should read this excellent analysis of the judge’s very thorough case opinion. (It’s really too bad it’s a lower court opinion that can’t be applied anywhere else directly because it would be great material for a precedent decision higher up. Maybe it will get cited higher up.)

Over a hundred same-sex couples immediately rushed to get licenses on the first day (photos here), with more following in the days after. The state government sought emergency stays from the 10th circuit appeals court, which initially rejected it on the grounds that the initial ruling judge at the district level had to consider a stay first. So same-sex marriages continued in Utah throughout the weekend until he formally rejected the request for a stay.

In the absence of a compelling public interest against allowing marriages to proceed — unsurprising given that they are already in progress in nearby California, New Mexico, Washington and over a dozen other states — the Tenth Circuit followed the district’s lead and by Tuesday had denied a stay three times since Friday. For the state government, that means they’re running out of road fast on blocking this from going into effect during the lengthy appeals process.

The de facto result is that same-sex marriages will continue in Utah until either stayed by the U.S. Supreme Court or until the circuit court actually hears the appeal and then overturns the district court ruling, if that is how it rules.

So what are the chances of either of those happening? The former is pretty unlikely. Liberal Obama-appointee Justice Sotomayor has control over emergency stay requests coming from the 10th circuit. She might choose to refer it to the other justices to prevent a re-application to a different justice, which would inevitably follow a unilateral denial. But even if she does, a majority of the court would have to be persuaded that halting same-sex marriage during the appeals process is an emergency (which is probably unlikely, given that 5 justices didn’t find a reason to block it in the Prop 8 cases or DOMA cases earlier this year, even if they weren’t directly ruling on this broader issue).

As for the possibility of the 10th circuit reversing the lower court ruling after denying a stay, that’s harder to predict. I’m certainly not a court expert, but my guess is that the circuit court level ruling could go either way. I’m not sure of the 10th circuit‘s ideological composition, but I believe it leans conservative, even though half of the active seats were filled by Democratic Presidents due to institutional reasons that favor conservative nominees for Federal seats in states with conservative senators.

Plus, I think the way it works is that it’s a pool of potential judges and there’s no way to know whether the same people who denied a stay get pulled to hear the actual case. Thus, it’s entirely possible that the circuit court will find in favor of the state down the road — although existing marriages would likely remain valid. But that decision is probably a year or two away.

So from here, it gets pretty murky. Remember that it took over four and a half years to get a final decision from the Supreme Court on the legal standing of the Proposition 8 proponents, let alone its constitutionality (which they never actually ruled on). There are also other Federal court challenges pending in other states against their constitutional amendments and related laws. Already, on Monday, another Federal case resulted in a ruling that Ohio must accept valid same-sex marriages performed in other states. Nevertheless, this Utah decision is an important milestone, and there are probably a lot of very happy families right now getting the recognition they deserve. That now state of affairs seems likely to continue during the appeals process.