The Sixth Circuit's Flawed Marriage Ruling

A divided three-judge panel of the Sixth Circuit Court of Appeals this afternoon upheld the marriage bans of Michigan, Ohio, Tennessee, and Kentucky. The majority opinion was written by Judge Jeffrey Sutton and joined by Deborah Cook, both put on the bench by George W. Bush. Clinton nominee Martha Craig Daughtrey dissented.

Among the many flaws in the majority's reasoning was the conclusion that Equal Protection violations are best resolved in the political sphere:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

But this is a case where a discreet group, long a target of discrimination, found itself once again victimized by the majority acting through the democratic process. The Equal Protection Clause exists to protect vulnerable minorities from being victimized by hostile majorities using the "customary political process."

As the dissent states:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is "who should decide?"—and leads us through a largely irrelevant discourse on democracy and federalism.

Another flaw was Sutton's dismissal of the possibility that there was animus in the wave of 2004 and 2006 ballot initiatives in which voters put bans into their state constitutions. He wrote that if the constitutional bans had been unusual, that might trigger suspicion of animus. But he found nothing unusual here:

Neither was the decision to place the definition of marriage in a State's constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period [between 2004 and 2006]. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. [emphasis added, internal citation removed]

If that had been the motivation, the constitutional amendments would not have banned gays and lesbians from marrying, but would have simply said that the legislature had the authority to limit marriage to opposite-sex couples. That would have removed the court's authority in the matter. In fact, that is exactly how Hawaii amended its constitution in the 1990s (which is how it recently was able to adopt marriage equality without re-amending its constitution).

But the Hawaii model of inequality was not nearly extreme enough for the advocates of the bans devised and aggressively pushed in 2004 and 2006. They went far, far beyond that. They tied the legislatures' hands and ensured that gays and lesbians would forever be prevented from achieving marriage equality through democratic means.

The ordinary voters who voted for the bans surely had numerous motivations. But it seems like magical thinking on Judge Sutton's part to assume that there was no animus motivating the architects and enthusiastic proponents of such an extreme and permanent exclusion of a targeted minority.

The ones fighting most forcefully for the bans a decade ago were the same organizations and people who had spent years opposing every advance in LGBT equality, whether those advances came from the courts, from legislatures, in classrooms, or in popular culture. That history is vital to understanding their motivations ten years ago, just as it is vital in addressing their current claims that LGBT equality violates their religious liberty.

PFAW Foundation

People For the American Way and Allies Tell Congress, "Stand up for Safe Schools"

Last week we told you about Marcel Neergaard, who has consistently spoken out against the "don't say gay" push in Tennessee. Marcel's latest words have come in the month leading up to the Day of Silence, an annual event organized by the Gay, Lesbian, and Straight Education Network (GLSEN) that is meant to draw attention to the "silencing effects" of anti-gay harassment and name-calling in schools and to be a way for students to show their solidarity with students who have been bullied.

As we approach April 11, this year's Day of Silence, PFAW is doing its part to spread Marcel's message – the idea that allstudents deserve far better than what they're getting when it comes to bullying and harassment in schools.

Today People for the American Way sent a letter to every member of Congress urging their support of the Safe Schools Improvement Act (SSIA) and the Student Non-Discrimination Act (SNDA). We are joined by twenty-four other safe schools supporters also sending letters to Congress. Each of us has taken a day to tell the House and Senate that this issue is not forgotten, that quality education means education without discrimination.

People For the American Way today on SSIA and SNDA:

Through SSIA and SNDA, and their inclusion in the Strengthening America's Schools Act (S. 1094), Congress has recognized the need to reverse this trend. SSIA supports the creation of comprehensive anti-bullying policies that enumerate specific categories of targeted students – including those targeted based on sexual orientation and gender identity – as well as data collection, public education, and grievance procedures. SNDA protects students from school-based sexual orientation and gender identity discrimination, much like Title IX does for gender discrimination, and much like other areas of law do for various protected classes. SNDA recognizes bullying and harassment as discrimination, and it provides both for remedies against discrimination and incentives for schools to prevent it from happening in the first place.

[ . . . ]

Ultimately, this is about stopping abhorrent behavior that gets in the way of quality education. All students deserve far better than that.

We'll be sharing even more with you in the coming weeks. In the meantime, please check out PFAW's report on Big Bullies: How the Religious Right is Trying to Make Schools Safe for Bullies and Dangerous for Gay Kids and its 2012 update.

PFAW

From "Right to Discriminate" to "Don't Say Gay," Standing up in Tennessee

With "right to discriminate" bills making news across the country, Tennessee's "don't say gay" battle continues to have a lasting – and inspiring – impact.

In 2011, Tennessee made national headlines for its effort to pass a "don't say gay" bill that would have prohibited educators from discussing any sexual orientation other than heterosexuality with students in kindergarten through eighth grade. This not only applied to lessons in classrooms, but to all discussions between educators and students. Any acknowledgement that LGBT people exist was officially prohibited, a cruel effort to isolate and declare as abnormal any children who were LGBT or who had LGBT family members (including parents).

It's come back in various forms since then, but it has yet to become law – thanks in part to courageous young people like Marcel Neergaard, who has consistently spoken out against the legislation and its chief sponsor, John Ragan, and who has also advocated for policies to protect LGBT students in the Volunteer State.

This week, Marcel wrote for the Huffington Post:

I know I am not alone in my struggles. I know I have to be happy with the progress LGBTQ people have made. I also know that it's not okay to be called out for being different. I know I can be helped by Tennessee's Dignity for All Students Act (HB927). It is important to say students cannot be harassed, intimidated or bullied because they are gay or perceived to be gay. The Dignity for All Students Act specifies many other groups, like kids who are bullied because of their religion, race, gender, gender identity or gender expression. It even helps the kids who are brave enough to be friends with students who are "different."

I'm not the only gay youth in Tennessee. I'm not the only gay kid in Oak Ridge. I'm not even the only gay student in my school [–] I'm just someone who is standing up. I know I have written about bullying many times, but this is still happening to kids like me everywhere and I refuse to let it continue. I will go on educating my school system, and the people around me who believe the gay stereotypes, but we [cannot] do this alone . . . We need . . . to convince legislators that students everywhere deserve safe places to learn. We also need people to encourage our representatives, who are supposed to represent us, to pass bills like the Dignity for All Students Act and federal legislation such as the Safe Schools Improvement Act. I want to make sure other kids do not have to go through what I have. This week I will be in Nashville for Advancing Equality on the Hill Day talking to my senator and (hopefully) representative about making schools safer for kids like me. What will you do?

Marcel's words ring especially true in the month leading up to the Day of Silence, an annual event organized by the Gay, Lesbian, and Straight Education Network (GLSEN) that is meant to draw attention to the "silencing effects" of anti-gay harassment and name-calling in schools and to be a way for students to show their solidarity with students who have been bullied.

As we approach April 11, this year's Day of Silence, PFAW will be doing its part to spread Marcel's message – the idea that all students deserve far better than what they're getting when it comes to bullying and harassment in schools.

In the meantime, check out Big Bullies: How the Religious Right is Trying to Make Schools Safe for Bullies and Dangerous for Gay Kids and its 2012 update.

In other LGBT news, Wisconsin marriage equality advocates are trying to get their litigation on the fast track.

Check out even more news from our friends at GLAAD, the Victory Fund, and the Washington Blade.

PFAW

Senate to Hold Cloture Votes on TN and AR Judicial Nominees

Early this week, the Senate is scheduled to hold cloture votes on four judicial nominees, including Timothy Brooks, nominee for the Western District of Arkansas and Pamela Reeves, nominee for the Eastern District of Tennessee. Brooks and Reeves have been waiting for confirmation votes on the Senate floor since October 31 and November 14, respectively.

As we noted earlier this month, Republicans are routinely delaying nominations on the Senate floor by requiring Democrats to invoke cloture on every single judicial nominee and then piling on hours of unneeded “post-cloture debate” for each nominee who is called up for a vote. This practice creates a weeks-long backlog of nominees awaiting votes and prevents the Senate from moving on to other business. Nominees like Brooks and Reeves could have been confirmed within minutes after they were sent to the Senate floor last year. Instead, both of these nominations were sent back to the  president in early January at the end of the first session of the 113th Congress to be re-nominated. After further needless delays in Committee, the nominees were finally placed on the Senate calendar only to wait an additional two months for consideration.

After the Senate has finally worked through the backlog of nominees to get to the Arkansas and Tennessee vacancies, Republicans are throwing up additional roadblocks, forcing Senator Reid to file cloture petitions, which will further delay their consideration. These nonsensical delays of well qualified nominees undermine the public’s faith in the Senate and create hardship for those seeking justice in the courts.

PFAW

GOP Senators Fail to Support Their States' Judicial Nominees

Because of Republican refusal to let Majority Leader Reid hold confirmation votes, there are 32 judicial nominations languishing on the Senate floor. They could be confirmed in a day, and even in a few minutes. But with Republicans filibustering all judicial nominees, the Senate will have to spend weeks doing nothing but engaging in needless "post-cloture debate" before finally being able to confirm these 32 nominees.

All these nominees have had the support of their home-state senators, many of whom are Republicans. But with the GOP blocking votes on those same nominees, that support seems to be in name only.

For instance, Arkansas senators Mark Pryor (D) and John Boozman (R) were united in their strong support of nominees James Moody and Timothy Brooks before the Judiciary Committee last fall. Both nominees were approved by the committee unanimously, Brooks in October and Moody in November. But since then, Republicans have prevented them from having confirmation votes. Yesterday, Pryor went to the Senate floor to request unanimous consent to hold a confirmation vote, which Republican Chuck Grassley objected to. Boozman, however, did not speak up for the nominees or against his party's sabotage of the federal courts in Arkansas.

Such silence characterizes most if not all of the Republican senators who seem not to be protecting their states' nominees:

Illinois (Mark Kirk): Manish Shah (Northern District) and Nancy Rosenstengel (Southern District) were both approved by the Judiciary Committee by unanimous voice vote on January 16 and February 6, respectively. Rosenstengel would fill a vacancy that has been officially designated a judicial emergency by the Administrative Office of U.S. Courts.

Kansas (Pat Roberts and Jerry Moran): Nancy Moritz (Tenth Circuit) and Daniel Crabtree (District of Kansas) were both approved by the committee by unanimous voice vote on January 16. Crabtree would fill a judicial emergency and would fill a vacancy that opened back in 2010; Moritz's vacancy opened in back in 2011.

Maine (Susan Collins): Jon Levy has been awaiting a confirmation vote since January 16, when the committee approved him overwhelmingly. Sen. Collins spoke glowingly about Levy when he was nominated and when he appeared before the Judiciary Committee. But now what he needs is for her to have a conversation with her fellow Republicans about letting him have a confirmation vote.

Missouri (Roy Blunt): Douglas Harpool was unopposed when the committee approved his nomination on January 16. He would fill a seat that became vacant ten months ago when a sitting judge passed away.

Pennsylvania (Pat Toomey): Gerald McHugh and Edward Smith were both among those approved by the committee on January 16, Smith unanimously and McHugh with a bipartisan 12-5 vote. Sen. Toomey has noted that "Judge Smith will sit in the Easton courthouse, which has lacked a sitting federal judge since 2004, thus ensuring that the people of the northern Lehigh Valley will once again have close, ready access to the federal judiciary." But unless Toomey can get his party to relent, the people of the northern Lehigh Valley will have to wait.

Tennessee (Lamar Alexander and Bob Corker): Pamela Reeves, who would be the first woman federal judge in the state's Eastern District, was approved by the Judiciary Committee by unanimous voice vote in November, yet has not been allowed a simply yes-or-no vote. Since then, she has been joined by Sheryl Lipman, who was similarly approved unanimously last month.

Utah (Orrin Hatch and Mike Lee): Carolyn McHugh would be the first woman from Utah to serve on the Tenth Circuit. Both her senators are actually on the Judiciary Committee. Last year, Hatch said he hoped the Senate would "act quickly" in confirming her, and Lee said he would work to "ensure her speedy confirmation." But this year? Despite her unanimous approval by the Judiciary Committee, Hatch and Lee's party hasn't allowed her to take her seat on the Tenth Circuit.

Wisconsin (Ron Johnson): James Peterson would fill a seat that has been vacant for more than five years, and which has been designated a judicial emergency. Last year, Sen. Johnson recommended him to the White House and urged his fellow Senators toward a "swift confirmation." He was approved with overwhelming bipartisan support by the Judiciary Committee last week, but he and the two other nominees advanced that day found themselves at the back of a line that already had 29 people on it. If Johnson wants a "swift confirmation," he might ask his fellow Republicans to let up and allow votes on all those other nominees.

In all these cases, courtroom vacancies could be filled if only Republicans would allow it. Each of these Republican senators has to decide whether GOP leader Mitch McConnell deserves a show of loyalty more than their constituents deserve a fully functioning system of justice.

PFAW

UPDATE: Former congressman, voting rights coalition, Marine speak out on voting problems in Tennessee

7/27/2012: Tennessee election officials announced on June 19 that they would not purge any more inactive voters until after the November election. The decision was made as part of the lawsuit Representative Davis filed against the state. Both sides have requested that Judge Kevin Sharp of the US District Court for the Middle District of Tennessee appoint a third-party investigator to look into the alleged incomplete or missing records of 11,000 voters.

4/13/2012Efforts by the No Barriers to the Ballot Box coalition to repeal Public Chapter Number 23 have unfortunately stalled. Both SB 2139 and HB 2176 died in their respective committees.

Former US Representative Lincoln Davis thought that the Tennessee Primary on March 6 would be an Election Day just like any other for him and his wife, Lynda. But that was not the case when they made it to their polling place.

Without being notified, the Davises had been purged from the rolls, which appears to have been a mistake not of their doing but on the part of elections officials. Davis continues:

The incident has raised concerns about that mistake and a host of other election issues, including:

Lack of government-issued photo IDS for those over the age of 60, the end of early voting in Davidson County ahead of the previously agreed upon date, a Nashville judge who had been denied the ability to vote by an "improperly trained" poll worker, and provisional ballot documents that gave an incorrect phone number to voters.

Photo ID in particular has galvanized Tennesseans who support voting rights. The No Barriers to the Ballot Box coalition has come together in an effort to repeal Public Chapter Number 23. Also known as SB 16, this law was sponsored by Senator Bill Ketron and Representative Debra Maggart, both ALEC members.

Representative Mike Turner is championing repeal through HB 2176 (companion SB 2139), which recently passed the House State and Local Government Subcommittee. The Tennessean reporting:

“I hope that we start encouraging people to vote, because for the greatest democracy in the world, we have a very small number of people voting,” Turner told the panel. “I think this (law) discourages people to vote.”

The panel’s three Democrats were joined by Independent Rep. Kent Williams of Elizabethtown and Republican Rep. Bob Ramsey of Blountville in voting for the bill. All three votes against the measure came from Republicans.

Click here for more from The Commercial Appeal.

Before the vote was taken, veteran Marine Tim Thompson testified regarding the sacrifices he and fellow servicemembers have made in order to protect our right to vote – sacrifices that he believes are undermined by the current law.

Thompson has also told his story to Rachel Maddow.



For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

UPDATE: Former congressman, voting rights coalition, Marine speak out on voting problems in Tennessee

UPDATE: Efforts by the No Barriers to the Ballot Box coalition to repeal Public Chapter Number 23 have unfortunately stalled. Both SB 2139 and HB 2176 died in their respective committees.

Former US Representative Lincoln Davis thought that the Tennessee Primary on March 6 would be an Election Day just like any other for him and his wife, Lynda. But that was not the case when they made it to their polling place.

Without being notified, the Davises had been purged from the rolls, which appears to have been a mistake not of their doing but on the part of elections officials. Davis continues:

The incident has raised concerns about that mistake and a host of other election issues, including:

Lack of government-issued photo IDS for those over the age of 60, the end of early voting in Davidson County ahead of the previously agreed upon date, a Nashville judge who had been denied the ability to vote by an "improperly trained" poll worker, and provisional ballot documents that gave an incorrect phone number to voters.

Photo ID in particular has galvanized Tennesseans who support voting rights. The No Barriers to the Ballot Box coalition has come together in an effort to repeal Public Chapter Number 23. Also known as SB 16, this law was sponsored by Senator Bill Ketron and Representative Debra Maggart, both ALEC members.

Representative Mike Turner is championing repeal through HB 2176 (companion SB 2139), which recently passed the House State and Local Government Subcommittee. The Tennessean reporting:

“I hope that we start encouraging people to vote, because for the greatest democracy in the world, we have a very small number of people voting,” Turner told the panel. “I think this (law) discourages people to vote.”

The panel’s three Democrats were joined by Independent Rep. Kent Williams of Elizabethtown and Republican Rep. Bob Ramsey of Blountville in voting for the bill. All three votes against the measure came from Republicans.

Click here for more from The Commercial Appeal.

Before the vote was taken, veteran Marine Tim Thompson testified regarding the sacrifices he and fellow servicemembers have made in order to protect our right to vote – sacrifices that he believes are undermined by the current law.

Thompson has also told his story to Rachel Maddow.



For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

Former congressman, voting rights coalition, Marine speak out on voting problems in Tennessee

Former US Representative Lincoln Davis thought that the Tennessee Primary on March 6 would be an Election Day just like any other for him and his wife, Lynda. But that was not the case when they made it to their polling place.

Without being notified, the Davises had been purged from the rolls, which appears to have been a mistake not of their doing but on the part of elections officials. Davis continues:

The incident has raised concerns about that mistake and a host of other election issues, including:

Lack of government-issued photo IDS for those over the age of 60, the end of early voting in Davidson County ahead of the previously agreed upon date, a Nashville judge who had been denied the ability to vote by an "improperly trained" poll worker, and provisional ballot documents that gave an incorrect phone number to voters.

Photo ID in particular has galvanized Tennesseans who support voting rights. The No Barriers to the Ballot Box coalition has come together in an effort to repeal Public Chapter Number 23. Also known as SB 16, this law was sponsored by Senator Bill Ketron and Representative Debra Maggart, both ALEC members.

Representative Mike Turner is championing repeal through HB 2176 (companion SB 2139), which recently passed the House State and Local Government Subcommittee. The Tennessean reporting:

“I hope that we start encouraging people to vote, because for the greatest democracy in the world, we have a very small number of people voting,” Turner told the panel. “I think this (law) discourages people to vote.”

The panel’s three Democrats were joined by Independent Rep. Kent Williams of Elizabethtown and Republican Rep. Bob Ramsey of Blountville in voting for the bill. All three votes against the measure came from Republicans.

Click here for more from The Commercial Appeal.

Before the vote was taken, veteran Marine Tim Thompson testified regarding the sacrifices he and fellow servicemembers have made in order to protect our right to vote – sacrifices that he believes are undermined by the current law.

Thompson has also told his story to Rachel Maddow.



For more information, check out The Right to Vote under Attack: The Campaign to Keep Millions of Americans from the Ballot Box, a Right Wing Watch: In Focus report by PFAW Foundation.

PFAW Foundation

Court Official - "I Just Don't See an End to Our Backlog"

The Memphis Commercial Appeal offers a window into how one state is impacted by the courtroom vacancy crisis.

With federal caseloads growing, a vacant seat on the bench and no relief in sight, local court officials are calling in the cavalry from the north.

Under a special Visiting Judges Program, three federal judges from Michigan -- one of the four states in the Sixth Judicial Circuit that includes Tennessee -- have agreed to help ease the local backlog.

So far 30 local criminal and civil cases have been reassigned to the three judges[,] who may be able to handle some of the work by teleconference, but who otherwise will be scheduling court time in Memphis.

...

The elevation last fall of U.S. Dist. Court Judge Bernice Donald to the federal appeals court bench has created a vacancy and thus added to the existing backlog. (Criminal Court Judge John Fowlkes Jr. has been nominated to fill the vacancy, though confirmation can be a lengthy process.)

...

[Clerk of the U.S. District Court for Western Tennessee Thomas] Gould does not believe the visiting judges will be the answer to the local court's backlog, but said reinforcements should bring at least some temporary relief until Donald's vacancy is filled.

Gould said other districts have similar caseload problems. "Many courts have never (used visiting judges) and others permanently have visiting judges on staff. Even with a full complement of judges, we're going to be struggling to come out of the cellar in terms of how long it takes to dispose of cases.

"I'd like to see a program of visiting judges go on indefinitely if there are people willing to help us do that. I just don't see an end to our backlog."

John Fowlkes was nominated to the Western District of Tennessee in December. Unfortunately, unless the backlog of pending nominees is quickly dealt with and floor votes are subsequently scheduled in a timely manner, Fowlkes will be standing at the back of a needlessly long line. If the people of Tennessee want to see a confirmed judge in their area any time soon, they have an interest in what happens with nominees from other parts of the country.

PFAW

Can Muslim-Bashing Win Votes?

In Mother Jones, Stephan Salisbury argues that anti-Muslim race-baiting – popular among the Tea Party Right in 2010 – isn’t actually an effective tactic for winning elections. He looks at some of the most prominent congressional and gubernatorial candidates to hop on the anti-“Ground Zero Mosque” bandwagon and finds that most of them didn’t score enough political points to actually win their elections.

While prominent Muslim-bashers like Rep. Renee Ellmers and Rep. Allen West won seats in Congress, Salisbury points out, many others – including New York gubernatorial candidate Rick Lazio, Tennessee’s Ron Ramsey and Lou Ann Zelinick and Nevada’s Sharron Angle – couldn’t scare up enough Islamophobia to catapult them into elected office.


Of course, it’s encouraging that anti-Muslim scare tactics aren’t powerful enough to win general elections, or even Republican primaries, on their own. But looked at another way, Salisbury’s data is incredibly depressing. The kind of Islamophobic fear-mongering that was so pervasive in the 2010 elections is a variety of ugliness that had, until very recently, existed on the fringiest fringe of the Right. But, in 2010 that ugliness spread from fringe crusaders like Pamela Geller to long-shot Tea Party candidates looking to make a name for themselves to prominent figures on the American Right. The fight over the so-called “Ground Zero Mosque” brought dangerous anti-Muslim rhetoric into the mainstream – and many of those who repeated it were considered not fringe characters but serious contenders for office.

These outspoken anti-Muslim congressional and gubernatorial candidates, even the unsuccessful ones, helped create the echo chamber that made baseless Islamophobia the standard in Republican politics and the right-wing media.

Yes, it’s good news that the base that’s motivated by Islamophobic attacks is relatively small. But it’s stunning that those attacks are accepted in mainstream political discourse at all.

 

PFAW