Rhetoric on ISIS Shows the Right Wing Is Out of Touch with Reality

It’s not hard to understand that the Right Wing is out of touch, but sometimes it is hard to recognize just how out of touch its leaders really are.

Take, for instance, ISIS, the group of radical militants committing atrocities across Iraq and Syria, recently beheading two American journalists among many others. It’s a scary organization, but to the Right, it’s not as scary as, say, comprehensive immigration reform.

To Pat Buchanan, the threat of immigration and the “decomposition of this country” is significantly greater than that of ISIS. William Gheen of the anti-immigrant group Americans for Legal Immigration (ALIPAC) also claimed that undocumented immigrants are a greater threat to America than ISIS since, according to Gheen, “ISIS could cut off the heads of journalists once a month for the next five years and that’s not going to destroy America, but Obama’s pumping of illegal immigrants into the country will.”

Nor is immigration the only domestic issue the Right thinks bears a resemblance to a vicious foreign threat.

Vic Eliason and Mat Staver last week linked same-sex marriage in the U.S. to the beheadings by ISIS. According to Eliason and Staver, gay rights advocates are destroying morality and biblical values and creating an anything-goes society where people do whatever they need to—killing or beheading—to get what they want, just like ISIS.

What’s terrifying about these comments isn’t that they’re extreme, but that these right wing figures aren’t speaking in a vacuum. Their audience continues to represent an important part of the GOP base, and in some cases these speakers have a direct line to Republican politicians.

As progressives, we can’t ignore this extremism just because it seems disconnected from reality. For the far right, that’s never been an obstacle at all.

PFAW

7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Today's unanimous panel ruling by the Seventh Circuit striking down Wisconsin and Indiana's marriage bans is a well-written, carefully reasoned take-down of some of the ludicrous arguments that equality opponents have been making to defend their policy of discrimination. It was written by Richard Posner, a noted conservative put on the bench by Ronald Reagan, and joined by judges nominated by Bill Clinton and Barack Obama. Ruling on the basis of the Equal Protection Clause of the Fourteenth Amendment, the court summarizes its opinion nicely:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

Judge Posner writes:

Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.

He carefully considers the argument put forward by the states that marriage is restricted to one man and one woman to benefit children. Among the many ways this argument fails to hold water:

But then how to explain Indiana's decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can't conceive at that age? [Wisconsin also bans first cousins from marrying unless the woman is over 55 or where the couple presents a doctor's affidavit saying one of them is permanently infertile.] If the state's only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? ... Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children. The state's argument that a marriage of first cousins who are past child-bearing age provides a "model [of] family life for younger, potentially procreative men and women" is impossible to take seriously.

With regard to the commonly heard refrain, echoed by attorneys for Indiana and Wisconsin, that courts should respect democratically-enacted bans on marriage by same-sex couples, Judge Posner points out what should be obvious to anyone who claims fealty to the United States Constitution:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Courts exist to enforce the Constitution against those who would subvert it. And that drives the right crazy.

PFAW Foundation

Louisiana's Marriage Ban Is Upheld By Judge Citing "Lifestyle Choices"

Judge Martin Feldman, nominated to the Eastern District of Louisiana thirty years ago by President Reagan, today upheld that state's marriage ban against same-sex couples. But his opinion concluding that the ban is constitutional is hardly a model of rigorous and dispassionate legal or factual analysis.

Early in the opinion, he makes clear that he simply doesn't see gay and lesbian couples as anything at all like opposite-sex couples:

This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition. (emphasis added)

This fundamental misunderstanding – reducing the love and commitment shared by lesbian and gay couples to nothing more than a simple "lifestyle choice" – colors his entire approach to the case.

In his Equal Protection analysis, he rules that classifications based on sexual orientation are subject only to the lowest-level, "rational basis" scrutiny. He gives two reasons. First, he cites higher court cases like Windsor that have avoided squarely answering that question, "despite opportunities to do so." Second, applying heightened scrutiny would "demean the democratic process." That's pretty circular reasoning, considering that heightened scrutiny exists in recognition that even democratically-enacted laws can violate a vulnerable group's Equal Protection rights.

His conclusion that the ban isn't sex discrimination is similarly flawed. Under the bans, your sex determines whether you can marry a particular person, playing the same role that race did in Loving v. Virginia. In that case, the Supreme Court rejected Virginia's argument that laws prohibiting interracial marriage did not trigger Equal Protection concerns because they applied to blacks and whites alike. Once the Court recognized that the law treated people differently based on their race, it followed standard Equal Protection analysis, striking down the law under the strict scrutiny that applies to racial discrimination. Other courts have recognized that bans against same-sex couples getting married similarly trigger Equal Protection concerns. In disagreeing with those courts, Judge Feldman rewrites Loving (and the Fourteenth Amendment):

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil … [N]o analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women. Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process. The Court is therefore satisfied that rational basis applies.

First off, the Fourteenth Amendment doesn't "expressly condemn racial discrimination" or even specifically mention race. Its ringing call for liberty and equality applies to "any person." Sorry, Judge Feldman, but that includes lesbians and gays.

Secondly, Feldman flips Loving on its head. Loving recognized that the state's marriage laws were subject to Equal Protection scrutiny despite, to use Feldman's formulation in this case, "the plain reality that [Virginia's] laws appl[ied] evenhandedly to both [races]." The Supreme Court didn't see through the ruse of "it applies to everyone" because of strict scrutiny; it used strict scrutiny because it saw through the ruse of "it applies to everyone."

Although other courts have struck down marriage bans under rational basis, Feldman upholds Louisiana's ban as related to the state's goals of linking children to their birth parents and managing social change through democratic consensus. He suggests that it could be struck down only if motivated solely by animus, which he rejects (although other courts have struck down the law under rational basis without a finding of animus). (The Supreme Court has held that animus against gays and lesbians is not a legitimate justification for a law.)

As for the Due Process claim, he sees the constitutional right at issue not as marriage, but as "same sex marriage." This is not surprising, since he doesn't see the couples before him as anything except people exercising and seeking approval of an alternative "lifestyle choice." And since there has not been a longstanding recognition of the right to "same sex marriage," he uses rational basis for the Due Process claim, and the couples before him lose again.

Toward the end of the opinion, Judge Feldman channels his inner Scalia, condemning judges who, like "philosopher kings," have ruled in favor of same-sex couples. He writes:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. … For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child?

That canard is so easily rejected. Can Judge Feldman really not come up with a single reason to ban child marriages or incestuous marriages that would not apply to marriages between unrelated adults of the same sex? Not one? The reasons for not letting a father marry his child really have nothing to do with the fact that one of the parties is a child, and that the other party is their father?

Judge Feldman was put in the bench back in 1983 by President Reagan. Our country was a much darker place for lesbians and gays then, and a ruling such as his would not have been surprising thirty years ago. But given the enormous changes in constitutional law that we have seen since then, Feldman's ruling is clearly a throwback to an earlier and less equal time.

PFAW Foundation

When Will Marriage Equality Head Back to the Supreme Court?

As state and federal courts continue to issue marriage rulings, one question remains – when will marriage equality head back to the Supreme Court?

We're getting closer to the answer.

Late last month, a ruling by a three-judge panel of the Tenth Circuit concluded that Utah's ban on same-sex marriage violates the Fourteenth Amendment's Due Process Clause (by denying a fundamental right to marry) and Equal Protection Clause (by making that right depend on a classification – the sex of the couple – that bears little if any relation to the state's purported goals).

Then yesterday we heard from the Utah Attorney General's office that the state will forego an appeal to the full Tenth Circuit and instead proceed to the US Supreme Court:

The U.S. Supreme Court is not obligated to hear Utah’s appeal — or any case regarding state same-sex marriage bans.

Should the justices decline to hear such a case, the rulings of lower courts, like that of the 10th Circuit Court of Appeals, would stand as the law of the land.

"We don’t really know if the Supreme Court will take this up or they won’t," said Equality Utah Executive Director Brandie Balken, who attended Wednesday’s march. "Unfortunately, today we have families, couples, children who are living in legal limbo."

Check out our website for more LGBT equality updates.

PFAW Foundation

Kentucky Marriage Ban Struck Down

Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.

District Judge John G. Heyburn II wrote:

In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

He dismissed the opposing arguments — including that the ban was good for the state’s economic stability and birth rates — out of hand, noting, “These arguments are not those of serious people.”

The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!

PFAW Foundation

Indiana’s Marriage Ban Struck Down

In another win for equality, today U.S. District Judge Richard Young struck down Indiana’s ban on marriage for same-sex couples. Because the judge did not stay the ruling, the Indianapolis Star reports that couples can begin getting married right away.

Not a single state marriage ban has been able to withstand a challenge in federal court in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which struck down part of DOMA.

Congratulations, Indiana!

PFAW Foundation

Dakotans File Suit, All Fifty States Now Have Either Marriage Equality or a Legal Challenge in Progress

In May, when we last updated our numbers on the fight for marriage equality, there were just two states left with unchallenged bans on same-sex marriage.

Today that number is zero – every state now either has marriage equality (19 and DC) or a legal challenge in progress (the other 31).

First we heard from South Dakota on May 22, where Rosenbrahn v. Daugaard has been filed on behalf of six couples.

Attorney Josh Newville in the Argus Leader:

With the filing of this lawsuit, South Dakota will join the many other states in the nation who are engaged in a historic and very important discussion about it what means to treat each other equally under the law.

Two weeks later, on June 6, Newville was back in court putting the last state on the board by filing Ramsay v. Dalrymple on behalf of seven North Dakota couples.

Plaintiff Bernie Erickson on Valley News Live:

We are simply looking for the same recognition that every other couple has, every other loving couple[].

Onward!

Check out our website for more LGBT equality updates.

PFAW Foundation

Marriage Equality Now Law in 19 States, Only 2 Bans Remain Unchallenged

The march toward marriage equality nationwide continues at an astounding pace.

On Monday Oregon became the 18th state added to the win column when Judge Michael McShane struck down its ban on marriage for same-sex couples. Then on Tuesday Judge John Jones issued a similar ruling in Pennsylvania, followed Wednesday by the news that Governor Tom Corbett won't appeal – make that 19!

Wednesday also brought the filing of a marriage equality lawsuit in Montana. Governor Steve Bullock:

Montanans cherish our freedom and recognize the individual dignity of every one of us. The time has come for our state to recognize and celebrate – not discriminate against – two people who love one another, are committed to each other, and want to spend their lives together.

I look forward to a future where all Montanans have the opportunity to marry the person they love, just as Lisa and I did almost 15 years ago. We are on the path to greater understanding and equality, and we will all be better for it.

Montana is the 29th state without marriage equality that has a lawsuit pending.

That leaves only two states, North and South Dakota, with unchallenged bans on same-sex marriage. Their suits could be filed any day now.

Onward!

Check out our website for more LGBT equality updates.

PFAW Foundation

Pennsylvania Marriage Ban Struck Down

Another day, another discriminatory ban struck down. Today a federal judge ruled in Whitewood v. Wolf that Pennsylvania’s 1996 ban on same-sex marriage is unconstitutional. This victory for marriage equality follows closely on the heels of the striking of Oregon’s ban only yesterday and makes Pennsylvania the 19th state allowing same-sex couples to marry.

Congratulate Pennsylvanians by sharing our graphic below:

PFAW Foundation

Marriage Equality Lawsuit Filed in Alaska, Only Three State Bans Remain Unchallenged

It seems like the march toward marriage equality is making news every day. Just yesterday, May 12, Alaska became the latest state to take up the issue when a lawsuit was filed in federal court challenging the state constitution's ban on same-sex marriage, which dates back to 1998.

The plaintiffs' intent is plainly stated:

[R]estore to the Alaska Constitution the principles of due process, fairness, and equality, and to restore and affirm the civil liberties, individual rights, and personal dignities otherwise guaranteed by the Alaska Constitution to each and all of its citizens.

But it's their personal stories that really drive the message home:

Matthew Hamby and Christopher Shelden: They have experienced difficulties obtaining benefits, such as health insurance, extended by the State of Alaska to other married couples as a routine matter.

Susan Tow and Christina Laborde: The same-sex marriage ban complicates the process by which Christine could adopt the children.

Stephanie Pearson and Courtney Lamb: The couple lives in Anchorage and wishes to marry in Alaska because both feel that Alaska is their home and that they should be able to marry in their home state.

Sean Egan and David Robinson: Despite the fact that they were lawfully married in New York nearly three years ago and that even the United States Armed Forces now recognize them as married, extending to Sean the benefits available to military spouses, the State of Alaska does not recognize their marriage, and in the eyes of the State, they are legal strangers, their marriage void under state law.

Tracey Wiese and Katrina Cortez: Tracey moved to Alaska sixteen years ago and Katrina has lived in Alaska her entire life. Tracey works for Providence Medical Center and is a business owner. Katrina is a [self-employed] business owner. The couple has a three year old daughter together.

Yesterday's filing is great news for these couples and countless other Alaskans wishing to bring marriage equality to their state, but on this issue Alaska is not The Last Frontier – three states remain with unchallenged marriage bans.

Here's where we stand:

17 states and DC have legalized marriage for same-sex couples.

30 states without marriage equality have lawsuits pending.

3 states – Montana, North Dakota, and South Dakota – have unchallenged bans, though a South Dakota challenge is expected soon.

Check out our website for more LGBT equality updates.

PFAW Foundation