My pocket analysis of the same-sex marriage ruling

Ok, I broke down and read much of the Supreme Court's same sex marriage ruling. We have conservatives calling the majority opinion jumbled and impossible to follow, and progressives calling the dissents 'hysterical.' So I have to read them, don't I?

I started with Clarence Thomas's dissent. Why? Because the outtakes listed here were the most hilarious. Thomas's dissent was a mess. First he defines 'liberty' as mostly meaning 'freedom of movement.' So he ignores the freedom or right to marry. Even in discussing the most relevant earlier case, he ignores the right to marry, and says the case was important because people could be imprisoned for being a spouse or a minister in an illegal wedding. Yes, it's a bad opinion.

Comparison to prior case law

The most relevant case, Loving v. Virginia, was a 1967 case where Virginia refused to recognize the marriage of a white man and black woman who had married in Washington DC but returned to Virginia to live. The Supreme Court, in its ruling, overturned all state laws against interracial marriages. The analogy couldn't be clearer.

So how does Loving v. Virginia figure in this latest ruling? In the text, Loving is cited 22 times, mostly by the majority. Both Scalia and Alito ignore it, and Thomas makes the wackadoodle argument about imprisonment being the issue, not marriage. No one says that Loving was wrongly decided because it clearly wasn't wrongly decided.

So if Loving was decided correctly, how does this inform the current case? Neither side makes a slam-dunk argument. The majority doesn't hammer home the point of a couple's status changing as one or both cross a state line. That is the most ridiculous aspect of the situation, and why states are compelled to recognize the marriages and divorces performed by other states.

Recognition or chaos

But it's also a bit ridiculous for one state (Massachusetts) to unilaterally change marriage law in all other states. I supposed the other states could have decided to recognize marriages performed in other states, and maybe we wouldn't have had this ruling. But so many states resisted doing so, and the conditions were set for this confrontation. This was absolutely inevitable. Same-sex couples were:

• Going to get married where they legally could.
• Going to move to states that refused to recognize their marriages.
• Going to sue for their rights. 

I can't respect Roberts' dissent because he doesn't acknowledge this. He wants the legislative process to carry on. To make that decision, Roberts has to ignore the rights of couples who are legally married in one jurisdiction but living or traveling in another.

I stopped reading Alito's dissent because he was whining about how religious people were being labeled as bigots. Alito seems to have missed the facts that 1) a Supreme Court ruling can't prevent public opinion from going that way, and 2) a whiny dissent can't prevent it either. I didn't read Scalia's dissent because I figured it would make me too angry.

So, overall, I was disappointed with the reasoning of this decision. No group really wrestled with the problem of states being required to recognize marriages of other states, and what we're going to do when there are conflicts. Are we going to follow Loving, and now this decision, and force them to recognize the marriages, or are we going to do something else? Who gets to decide?

Finally, what happens when a state allow plural marriage? All hell breaks loose again.

Image:skydancingblog.com

Tsunami of memories: Anita Hill

Just as in Remembrance of Things Past, memories sometimes wash over me with their power undiminished by time. Today, it was because of this article about Anita Hill.

In 1991, George H.W. Bush nominated Clarence Thomas to the Supreme Court. The highest court needed a black justice because the only black justice, Thurgood Marshall, had just retired.

Thomas had been groomed for the Supreme Court by the Republicans. There are few blacks among the Republicans, so it wasn't hard for a black Republican to rise. Witness Allen West, Herman Cain, and Dr. Ben Carson in the past few years. Clarence Thomas wasn't a great lawyer or scholar, but that holds true for all the justices right now. I don't know a major accomplishment of any of them.

What fills my memories was the drama of the hearings for Thomas's nomination. Nominations are pretty dull affairs. There is always effusive praise from one side and attempts at gotcha questions from the other. I'm pretty sure Thomas's hearing was like that, but with the added indignation from the liberals that the GOP had a black man (or Uncle Tom) who talked the same trickle-down, traditional respect-for-authority, conservative line that all the old white men did. However, since he was black, the GOP could pretend that they were a broader party than they were. Indignant isn't quite the word for the liberal response--'ape shit' is more apt.

The liberals weren't doing a good job of derailing the nomination, something that they had succeeded in doing in 1987 with the nomination of Robert Bork, a seriously intelligent and detestable person. It looked as though Thomas, this groomed slap-in-the-face at blacks (or was it liberals?), was going to win confirmation.

Abrupt Shift

Then a scoop erupted in the press. A former associate of Thomas had been interviewed by the FBI about allegations that Thomas has harassed female employees. Additional hearings were scheduled. Anita Hill testified calmly on a Friday. She told about Thomas, in the workplace, discussing scenes from porno movies he'd seen the previous weekend. There was also the joke he made about a pubic hair on his can of coke.

What Anita Hill said had the ring of truth to me. But this is so subjective. To conservatives, she was a "spurned woman" trumped up by radical pro-choice feminists trying to derail the appointment of a solid, fair man.

I watched her testimony, and I also watched Thomas's testimony in that rare Saturday session. Thomas was full of fire and righteous indignation, and he was very believable. He denounced the charges as a desperate and craven attempt to besmirch a honest man, all for venal political reasons. I would have believed it, and many people did, including some co-workers. (Aside: People are generally good as sorting out the weaselly liars, but we aren't so good at identifying the full-throated ones.)

However, the supporting witnesses for Hill were quite strong, recalling how she told them at the time what was happening. Purely on evidence, Hill's story was stronger. But evidence didn't win over political considerations, and Thomas was confirmed.

The Personal Overlaps the Political

What I remember most was Anita Hill telling a true story that wasn't generally heard before. Her boss degraded her in sexual ways, but he got away with it because it was only words. Some commentators castigated her as a liar, saying that no woman would put up with that treatment.

But I knew otherwise. I knew from personal experience that until sexual harassment became a well-known issue, women didn't know what to do when they were harassed. I certainly didn't know what to do when a senior engineer in his 50's took the liberty of putting his arm around my back as we discussed engineering matters, and he kept it there. On one hand, it might have looked like innocuous touch, but it definitely was unwelcome and uncomfortable on my end.

Luckily, his liberties never progressed. I recall vividly how they ended. I ran into him at the bank, and he put his arm around me again. I thought "I may have to put up with this at work, but there's no way in hell I'm putting up with it outside of work." So I jammed my elbow hard into his side. He never touched me again. He avoided eye contact after that too.

I was a twenty-something woman engineer, one of only two in that factory, and there were no harassment reporting programs back then. I wasn't a trail-blazer, and I didn't know what to do. So I did nothing for a while, then I fought back, then it was over, and I never thought "this is a general problem bigger than me." Thank God other people did see the bigger problem and did work to counter it. This was pure progress to a better world. I'll argue with anyone who says otherwise.

Both swore to tell the truth

Image: salon.com

Leak: For them, Norquist is a RINO

OK, folks, I have no idea how politics is done, so this was eye-popping. You see, to be infulential (I mean influential) in politics, you have to host a weekly members-only strategy session where you talk about who's not pulling their weight, who stabbed you in the back, what words to use to attack someone, and what everyone has to accomplish before next week.

This is like Journolist, but for conservatives. The problem is that there's more than one of these members-only conservative networks. Norquist has had one for twenty years, but now there's an upstart that hates Norquist as a compromising-squish-establishment-fake-conservative. Wow. The right keeps moving so fast that we normal people can't keep up with what's extreme nowadays.

The people behind this ultra-conservative scout troop include Justice Clarence Thomas's wife, defunct representative Allen West, Ted Cruz, and a bunch of, ahem, journalists from Breitbart.

How do we know this? Someone got hold of documents from their private Google site and leaked the whole thing to Mother Jones. Just as I keep saying, whatever you want to hide, it ain't gonna stay hidden.

A good introduction is here, but be sure to read the long version to find out how the powers-that-be craft the news memes you can't stand. One. More. Second.

Oh, and they hate Karl Rove too.

Image: motherjones.com

Extra. Why are we bombarded with so many talking points? Per the Leesburg grid:

"Where this really gets interesting is when you're covering points faster than the opponent can create them. This puts them 'behind the eight ball,' and they never seem to create their own ideas; they only respond to yours."

Please, God, no, it's actually designed that way.

Update 7/30/13. Jonathan Bernstein of PlainBlog (still fascinating during these doldrums--great job!) says:

"Really? You're telling me that the same right-wing kooks who were publicly hyping Benghazi! and publicly urging Boehner and Issa to 'make this supposed scandal a top-priority' were...also doing the same thing when the TV cameras weren't on!"

He makes a valid point--none of this is particularly surprising or a scandal. I still found the information fresh, especially to know who's in the group and who's not.

Paradoxical quote of the day

"I learned so much law listening to Orrin Hatch. We all remember his memorable performances on the Senate Judiciary Committee. I was particularly influenced by him in my 20s and 30s during the Reagan and Bush I eras. His efforts to save the nomination of Clarence Thomas were truly heroic. Thomas was a weak candidate to begin with and the Anita Hill allegations seemed to many to be more than enough to doom his nomination. But Hatch took it upon himself to resurrect Thomas, and Clarence Thomas sits on the Supreme Court today as a result of the supreme efforts of Orrin Hatch. It takes a man with a very special gift to place a complete ignoramus on the U.S. Supreme Court." - Wall Street Journal comment

Courtroom of the Supreme Court

Background - Like other Republican senators, Orrin Hatch was been judged a RINO by Tea Partiers and faces Republicans challengers for his seat, which prompted this news item and attached comments. I have a soft spot for Orrin Hatch, who seems to me one of the most decent and respectful politicians.