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Dissenting 6th Circuit Judge: Anti-Gay Marriage Ruling ‘Fails’ On ‘Constitutional Question’

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The dissenting judge in today’s 2-1 6th Circuit decision upholding marriage bans in four states has written a stunning rebuke of her colleagues’ work.

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. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

So begins the dissenting opinion – over 20 pages long – in today’s stunning 6th Circuit Court of Appeals decision that finds states can ban same-sex marriage. The ruling sets off a constitutional challenge that most likely will go to the U.S. Supreme Court.

(The complete ruling is embedded above, thanks to Equality Case Files.)

Judge Martha Craig Daughtrey wrote the dissent.

Readers may remember the audio of Judge Daughtrey’s fiery questioning during the case.

“It doesn’t look like the sky has fallen,” Judge Daughtrey told the court, in the ten-plus years same-sex marriage has been on the books in Massachusetts. 

Daughtrey’s opinion continues:

In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status— de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.

Bam!

She then slams “what has come to be known as the “irresponsible procreation” theory: “that limiting marriage and its benefits to opposite-sex couples is rational, even necessary, to  provide for ‘unintended offspring’ by channeling their biological procreators into the bonds of matrimony. When we asked counsel why that goal required the simultaneous exclusion of same-sex couples from marrying, we were told that permitting same-sex marriage might denigrate the institution of marriage in the eyes of opposite-sex couples who conceive out of wedlock, causing subsequent abandonment of the unintended offspring by one or both biological parents. We also were informed that because same-sex couples cannot themselves produce wanted or unwanted offspring, and because they must therefore look to non-biological means of parenting that require  planning and expense, stability in a family unit headed by same-sex parents is assured without the benefit of formal matrimony.”

But, as the court in Baskin pointed out, many “abandoned children [born out of wedlock to biological parents] are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.” Id. How ironic that irresponsible, unmarried, opposite-sex couples in the Sixth Circuit who produce unwanted offspring must be “channeled” into marriage and thus rewarded with its many psychological and financial benefits, while same-sex couples who become model parents are punished for their responsible behavior by being denied the right to marry. As an obviously exasperated Judge Posner responded after puzzling over this same paradox in Baskin, “Go figure.”

And Judge Daughtrey goes on to denigrate — appropriately — the testimony given by none other than Mark Regnerus.

To counteract the testimony offered by the plaintiffs’ witnesses, the defendants presented as witnesses the authors or co-authors of three studies that disagreed with the conclusions reached by the plaintiffs’ experts. All three studies, however, were given little credence by the district court because of inherent flaws in the methods used or the intent of the authors. For example, the New Family Structures Study reported by Mark Regnerus, a sociologist at the University of Texas at Austin, admittedly relied upon interviews of children from gay or lesbian families who were products of broken heterosexual unions in order to support a conclusion that living with such gay or lesbian families adversely affected the development of the children. Regnerus conceded, moreover, that his own department took the highly unusual step of issuing the following statement on the university website in response to the release of the study: [Dr. Regnerus’s opinions] do not reflect the views of the sociology department of the University of Texas at Austin. Nor do they reflect the views of the American Sociological Association which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that the findings from Dr. Regnerus’[s] work have  been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families. In fact, the record before the district court reflected clearly that Regnerus’s study had been funded by the Witherspoon Institute, a conservative “think tank” opposed to same-sex marriage, in order to vindicate “the traditional understanding of marriage.”

And then, bam! again.

Presented with the admitted biases and methodological shortcomings prevalent in the studies performed by the defendant’s experts, the district court found those witnesses “largely unbelievable” and not credible.

 

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‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’

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April 25, 2024

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Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.

Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.

But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.

Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”

RELATED: Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.

“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.

Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.

“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.

RELATED: Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.

“The assassination of political rivals as an official act,” the New York Democrat wrote.

“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”

Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”

CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”

Watch the video above or at this link.

READ MORE: ‘They Will Have Thugs?’: Lara Trump’s Claim RNC Will ‘Physically Handle the Ballots’ Stuns

 

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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8 hours ago

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

READ MORE: ‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

READ MORE: Biden Campaign Hammers Trump Over Infamous COVID Comment

Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

READ MORE: ‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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11 hours ago

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

READ MORE: ‘To Do God Knows What’: Local Elections Official Reads Lara Trump the Riot Act

“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

READ MORE: ‘Doesn’t Care if Pregnant Women Live or Die’: Alito Slammed Over Emergency Abortion Remarks

She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

READ MORE: ‘Blood on Your Hands’: Tennessee Republicans OK Arming Teachers After Deadly School Shooting

 

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