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Law, Unwrapped: Gay Marriage – Why Chris Christie Is Wrong On All Counts

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“Take it to the people!”

That’s the rallying cry du jour of those who oppose marriage equality. And it has a certain, superficial appeal: Given the importance of the issue, doesn’t it make sense to let the whole population decide rather than the legislature?

So argues New Jersey  Governor Chris Christie, who wasted little time delivering his promised veto of a marriage equality bill that the legislature comfortably passed. Most readers will recall his infamous statement that African-Americans would have liked to have avoided those pesky civil rights struggles by having their legal status put to a popular vote. Well, a few folks not-quite politely suggested that approach might not have gone so well. So Christie did a clumsy, two-step back pedal (first claiming that blacks would have liked the option of having their rights placed on the ballot, and then caving completely and taking it all back).

But the whole dust-up pinpoints the problem with his approach: We don’t put civil rights on the ballot, because the majority has its own interests and prejudices, and can’t be counted on to do what in hindsight is obviously the right thing. That’s sometimes true of legislatures, too – after all, they voted in the Jim Crow laws – but at least there’s reason to hope that our democratically elected representatives will take the longer view. I could go into some political theory about representative democracy here, but it’s not my job to educate the good governor. One lesson from New Jersey itself suffices: In 1915, Garden State voters were asked whether women should be allowed to join the men in the exercise of the franchise.

Their answer?  No.

The Nineteenth Amendment, which finally gave women the right to vote, and ratified by state legislatures just five years later, was needed to fix what New Jersey voters would not. Really, need any more be said?

Except for rare slip-ups like Christie’s, you won’t hear the anti-equality brigade mentioning these inconvenient historical facts, though. The “let the people decide” narrative is compelling – except when it isn’t. Thus, in New Hampshire they’re pressuring the legislature to roll back marriage equality because they know the voters aren’t likely to turn back time. (A Republican-sponsored measure to send the voters a constitutional amendment stealing gay couples’ right to marry was quietly shelved.) And let’s not forget that, just a few years ago, the cry was that marriage equality was being foisted on a helpless populace by evil, anti-democratic courts. So democracy was OK until they stopped getting the results they wanted. Now it’s all about direct democracy. It’s really all about opportunism.

So far, this is working – notably, with Proposition 8. And that was followed by the Maine voters’ decision in 2009 to roll back the marriage equality bill approved by that state’s legislature. The same efforts are likely in Maryland and Washington this year: the anti-equality forces should be able to gather enough signatures to place referenda on the ballot that would repeal marriage equality laws that have already passed (Washington) or soon will (Maryland).

Polls in both states suggest the strategy will fail, and that voters will decide to retain the marriage equality laws. I’m not so sure. The recent history of these measures suggests that favorable poll numbers don’t always translate into victory in these cases. Some think that people are reluctant to tell pollsters their plan to vote down their fellow citizens’ equality. They should be.

I hope I’m wrong, and my guess is that we’ll win at least one of these two fights. If we do, or when we win a popular vote in some other state, the last argument about how marriage equality is being rammed through by a group of elite activists will have been defeated. I’m sure the National Organization for Marriage and like-minded groups are already working on the next set of talking points.

Christie, though, isn’t NOM. He wants to be seen as a reasonable, moderate Republican (which, on some issues, he is). So his veto message was very chatty: Change this to civil unions and then I’ll create an ombudsman to solve the many problems that same-sex couples have encountered in trying to get public and private actors to treat their relationships the same as marriage.

Got all that? I might suggest, instead, that the simplest solution would be to call the relationships marriages. No other relationship will ever carry the same status. Why do you think they created civil unions in the first place?

A quick bit of recent historical context: In the 2006 case, Lewis v. Harris, the New Jersey Supreme Court instructed the legislature to find a way of granting same-sex couples legal equality. But the court, following the example set by the Vermont Supreme Court in 1999, gave the lawmakers an easy out by saying that, well, they didn’t have to call this equality “marriage.” Both state legislatures took the life raft and crafted the civil union compromise – a doomed effort to give same-sex couples all the rights, obligations, and responsibilities of marriage while withholding the name.

By 2009, a decade of experimenting with the civil union had convinced the Vermont legislature that only full marriage equality would suffice, and they passed the bill into law – over the governor’s veto. It’s time for the New Jersey lawmakers to do the same. Whatever individual legislators think about marriage equality, it’s by now clear that they haven’t created the equality that the court was (naively) hoping they would. The only way to carry out the court’s mandate is by defying Gov. Christie’s obfuscating call for an ombudsman and doing what equality demands. If they won’t do it, there’s a case working its way through the state courts that will order them to.

Why not do the right thing now?

 

Image: Chris Christie by Bob Jagendorf
 

Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

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News

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

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10 mins ago

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April 25, 2024

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The county clerk for Ingham County, Michigan blasted Republican National Committee co-chair Lara Trump after the ex-president’s daughter-in-law bragged the RNC will have people to “physically handle” voters’ ballots in polling locations across the country this November.

“We now have the ability at the RNC not just to have poll watchers, people standing in polling locations, but people who can physically handle the ballots,” Trump told Newsmax host Eric Bolling this week, as NCRM reported.

“Will these people, will they be allowed to physically handle the ballots as well, Lara?” Bolling asked.

“Yup,” Trump replied.

Marc Elias, the top Democratic elections attorney who won 63 of the 64 lawsuits filed by the Donald Trump campaign in the 2020 election cycle (the one he did not win was later overturned), corrected Lara Trump.

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“Poll observers are NEVER permitted to touch ballots. She is suggesting the RNC will infiltrate election offices,” Elias warned on Wednesday.

Barb Byrum, a former Michigan Democratic state representative with a law degree and a local hardware store, is the Ingham County Clerk, and thus the chief elections official for her county. She slammed Lara Trump and warned her the RNC had better not try to touch any ballots in her jurisdiction.

“I watched your video, and it’s riveting stuff. But if you think you’ll be touching ballots in my state, you’ve got another thing coming,” Byrum told Trump in response to the Newsmax interview.

“First and foremost, precinct workers, clerks, and voters are the only people authorized to touch ballots. For example, I am the County Clerk, and I interact with exactly one voted ballot: My own,” Byrum wrote, launching a lengthy series of social media posts educating Trump.

“Election inspectors are hired by local clerks in Michigan and we hire Democrats and Republicans to work in our polling places. We’re required by law to do so,” she continued. “In large cities and townships, the local clerks train those workers. In smaller cities and townships, that responsibility falls to County Clerks, like me.”

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She explained, “precinct workers swear an oath to uphold the Constitution of the United States and the Constitution of the State of Michigan.”

“Among the provisions in the Michigan Constitution is the right to a secret ballot for our voters,” she added.

Byrum also educated Trump on her inaccurate representation of the consent decree, which was lifted by a court, not a judge’s death, as Lara Trump had claimed.

“It’s important for folks to understand what you’re talking about: The end of a consent decree that was keeping the RNC from intimidating and suppressing voters (especially in minority-majority areas).”

“With that now gone, you’re hoping for the RNC to step up their game and get people that you train to do god-knows what into the polling places.”

Byrum also warned Trump: “If election inspectors are found to be disrupting the process of an orderly election OR going outside their duties, local clerks are within their rights to dismiss them immediately.”

“So if you intend to train these 100,000 workers to do anything but their sacred constitutional obligation, they’ll find themselves on the curb faster than you can say ‘election interference.'”

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OPINION

‘I Hope You Find Happiness’: Moskowitz Trolls Comer Over Impeachment Fail

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17 hours ago

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April 24, 2024

By

U.S. Rep. Jared Moskowitz (D-FL) is mocking House Oversight Committee Chairman Jim Comer over a CNN report revealing the embattled Kentucky Republican who has been alleging without proof President Joe Biden is the head of a vast multi-million dollar criminal bribery and influence-peddling conspiracy, has given up trying to impeach the leader of the free world.

CNN on Wednesday had reported, “after 15 months of coming up short in proving some of his biggest claims against the president, Comer recently approached one of his Republican colleagues and made a blunt admission: He was ready to be ‘done with’ the impeachment inquiry into Biden.” The news network described Chairman Comer as “frustrated” and his investigation as “at a dead end.”

One GOP lawmaker told CNN, “Comer is hoping Jesus comes so he can get out.”

“He is fed up,” the Republican added.

Despite the Chairman’s alleged remarks, “a House Oversight Committee spokesperson maintains that ‘the impeachment inquiry is ongoing and impeachment is 100% still on the table.'”

RELATED: ‘Used by the Russians’: Moskowitz Mocks Comer’s Biden Impeachment Failure

Last week, Oversight Committee Ranking Member Jamie Raskin (D-MD) got into a shouting match with Chairman Comer, with the Maryland Democrat saying, “You have not identified a single crime – what is the crime that you want to impeach Joe Biden for and keep this nonsense going?” and Comer replying, “You’re about to find out.”

Before those heated remarks, Congressman Raskin chided Comer, humorously threatening to invite Rep. Moskowitz to return to the hearing.

Congressman Moskowitz appears to be the only member of the House Oversight Committee who has ever made a motion to call for a vote on impeaching President Biden, which he did last month, although he did it to ridicule Chairman Comer.

It appears the Moskowitz-Comer “bromance” may be over.

Wednesday afternoon Congressman Moskowitz, whose sarcasm is becoming well-known, used it to ridicule Chairman Comer.

“I was hoping our breakup would never become public,” he declared. “We had such a great thing while it lasted James. I will miss the time we spent together. I will miss our conversations. I will miss the pet names you gave me. I only wish you the best and hope you find happiness.”

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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OPINION

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

Published

19 hours ago

on

April 24, 2024

By

The U.S. Supreme Court heard oral arguments in a case centered on the question, can the federal government require states with strict abortion bans to allow physicians to perform abortions in emergency situations, specifically when the woman’s health, but not her life, is in danger?

The 1986 federal Emergency Medical Treatment and Active Labor Act (EMTALA), signed into law by Republican President Ronald Reagan, says it can. The State of Idaho on Wednesday argued it cannot.

U.S. Solicitor General Elizabeth Prelogar, The Washington Post’s Kim Bellware reported, “made a clear delineation between Idaho law and what EMTALA provides.”

“In Idaho, doctors have to shut their eyes to everything except death,” Prelogar said, according to Bellware. “Whereas under EMTALA, you’re supposed to be thinking about things like, ‘Is she about to lose her fertility? Is her uterus going to become incredibly scarred because of the bleeding? Is she about to undergo the possibility of kidney failure?’ ”

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Attorney Imani Gandy, an award-winning journalist and Editor-at-Large for Rewire News Group, highlighted an issue central to the case.

“The issue of medical judgment vs. good faith judgment is a huge one because different states have different standards of judgment,” she writes. “If a doctor exercises their judgment, another doctor expert witness at trial could question that. That’s a BIG problem here. That’s why doctors are afraid to provide abortions. They may have an overzealous prosecutor come behind them and disagree.”

Right-wing Justice Samuel Alito appeared to draw the most fire from legal experts, as his questioning suggested “fetal personhood” should be the law, which it is not.

“Justice Alito is trying to import fetal personhood into federal statutory law by suggesting federal law might well prohibit hospitals from providing abortions as emergency stabilizing care,” observed Constitutional law professor Anthony Michael Kreis.

Paraphrasing Justice Alito, Kreis writes: “Alito: How can the federal government restrict what Idaho criminalizes simply because hospitals in Idaho have accepted federal funds?”

Appearing to answer that question, Georgia State University College of Law professor of law and Constitutional scholar Eric Segall wrote: “Our Constitution unequivocally allows the federal gov’t to offer the states money with conditions attached no matter how invasive b/c states can always say no. The conservative justices’ hostility to the spending power is based only on politics and values not text or history.”

Professor Segall also served up some of the strongest criticism of the right-wing justice.

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

He wrote that Justice Alito “is basically making it clear he doesn’t care if pregnant women live or die as long as the fetus lives.”

Earlier Wednesday morning Segall had issued a warning: “Trigger alert: In about 20 minutes several of the conservative justices are going to show very clearly that that they care much more about fetuses than women suffering major pregnancy complications which is their way of owning the libs which is grotesque.”

Later, predicting “Alito is going to dissent,” Segall wrote: “Alito is dripping arrogance and condescension…in a case involving life, death, and medical emergencies. He has no bottom.”

Taking a broader view of the case, NYU professor of law Melissa Murray issued a strong warning: “The EMTALA case, Moyle v. US, hasn’t received as much attention as the mifepristone case, but it is huge. Not only implicates access to emergency medical procedures (like abortion in cases of miscarriage), but the broader question of federal law supremacy.”

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