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The Ennead Awards: Nine Justices, Nine Prizes

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Well, folks, before the arguments to the Supreme Court on Prop 8 and the Defense of Marriage Act are erased from your memory tapes to make room for “Thrift Shop” (clean version only, please!), we present the First-Ever Ennead Awards. There are — conveniently — nine categories, to wit:

Most Willfully Clueless Award: To Justice Antonin Scalia, for his remarks that sociologists were in disagreement about the effects of gay and lesbian parenting on children. OK, they’re not. The most one can say is that more evidence would be helpful, but this position is usually taken by those who are trying to avoid the implications of the studies that do exist — and show that kids do just fine across all measures when raised by same-sex parents. It might be that Scalia was sending out one of his increasingly high-pitched dog whistles to the far right, a sonic treat that was prominently featured during his otherwise-inexplicable excoriation of the Obama Administration for not doing enough to deal with illegal immigration. But it might also be that, once again, the opera-loving oenophile just didn’t do his homework. As Maureen Dowd pointed out, he didn’t even seem to know how many states have full marriage equality. (He might have just been posing, though.) And last year, he seemed to lament the suggestion that he should actually read the Affordable Care Act before deciding its constitutionality. Try that in your job.

 

Best Performance by an Actor in a Fantasy: To Chief Justice John Roberts. When the Justices agreed to hear the case, some of us hoped that they would finally take up the issue of whether discrimination based on sexual orientation should be judged by what the Court calls “heightened scrutiny.” It doesn’t look like the Court’s going to do that. In fact, I doubt they’re even going to get into the vast equal protection problems at all. And one reason for their declining to do so was voiced by the Chief Justice, who suggested that gays and lesbians don’t need the suspect classification designation that’s reserved for groups that lack political power. According to Roberts, the reason same-sex marriage laws have passed is because of our powerful lobbying. Then he added:

As far as I can tell, political figures are falling over themselves to endorse your side of the case.

OK, this is a valid point (and one I made, in a somewhat different way, in this Slate piece). But here’s the much more persuasive response of Roberta Kaplan (representing Edie Windsor, the DOMA plaintiff):

The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. And only two of those referenda have ever lost.

[A]nd until 1990 gay people were not allowed to enter this country. So I don’t think that the political power of gay people today could possibly be seen within that framework, and certainly is analogous — I think gay people are far weaker than the women were at the time [the Court found women to be a “suspect class.”]

Just to make sure no one else might claim this award, the Chief Justice also expressed mild incredulity that the 84 Senators who voted for DOMA might have been motivated by a dislike of lesbian and gay people. Sustaining this particular fantasy requires ignoring the contribution of our next award winner…[1. Justice Roberts would also have won the “Oops!” Award if the Academy had recognized the category. At one point, he let slip the obvious point that Congress wasn’t really concerned with uniformity in enacting DOMA, but in something else: “Do you think Congress has the power to interfere with the [oops!!]…to not adopt the state definition….”]

 

Best Audiobook Reading Performance: To Justice Elena Kagan. Her sparring with Paul Clement, who was trying to defend the indefensible DOMA, was devastating. When Clement kept insisting that the real purpose of DOMA was to ensure uniformity, she confronted him:

JUSTICE KAGAN: Well, is what happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Is that what happened in 1996?

MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.

Yes, it does. And yes, you should.

 

The Lactose-Intolerance Award: To Justice Ruth Bader Ginsburg, who delivered this dairy product:

It’s — it’s — as Justice Kennedy said, 1100 statutes [that confer federal advantages], and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Well, we know what she thinks of DOMA. But I don’t want to milk the point any further.

The Billy Preston (“Nothin’ from Nothin'”) Award: To Justice Stephen Breyer. Always prolix (he had more “air time” than any other Justice in both of these arguments) and often entertaining, here’s how he explored the somewhat counterintuitive claim that states that give same-sex couples all the same rights as opposite-sex couples, but without the name, have a harder time defending their exclusionary laws than states that fence gay and lesbian couples out completely:

I mean, take a state that really does nothing whatsoever. They have no benefits, no nothing, no nothing.

Anything but that!

Best Performance of 1999: Belatedly awarded to Justice Samuel Alito, who bemoaned the possibility that the Court might be able to find a constitutional right for same-sex couples to marry on the ground that such marriages weren’t even as old as cell phones or the internet. After receiving the award, the Justice sped away in a Ford Granada.

 

The George Burns Award: To the woman playing the “straight man” during the arguments, Justice Sonia Sotomayor. Among her most unfunny but penetrating series of exchanges involved whether any other kind of discrimination against gays and lesbians might be justified. The attorney defending Prop 8, Charles Cooper, couldn’t think of any. The exchange reflected how far the nation has moved from the Justice Scalia position, expressed in cases like Romer v. Evans and Lawrence v. Texas that discrimination against gays and lesbians is still as American as apple pie. The exchange also points up the need to identify a real harm to society from same-sex marriages. None was identified during two-plus hours of argument.

 

Most Important Player in a Dramatic Role Award: As always, to Justice Kennedy, who will almost surely be the swing vote in both cases. It looks like he’s ready to join with the four sort-of liberals on the Court to strike down DOMA — but on states’ rights grounds, rather than on the basis that DOMA denies equality under the law — which it ever so plainly does. (Windsor’s estate tax bill upon the death of her wife: $363,000; hypothetical husband’s bill: $0.) It also looks like he wants Prop 8 gone, but doesn’t know quite how to get there. Two quotes, one epigrammatic and one moving:
[To a flabbergasted Charles Cooper]: “And you might address why you think we should take and decide this case.” (Really? Now? Over at Slate, I offered a possible reading of this statement.)

[T]here is an immediate legal injury…and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

The Marcel Marceau Lifetime Achievement Award: To Justice Clarence Thomas. ‘Nuff said.

 

John Culhane is the co-author of the new book,  Same-Sex Legal Kit for Dummies. 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 also a contributing writer for Slate.

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News

Trump Team Pushing ‘Utter Propaganda’ on Deportations to Create ‘Climate of Fear’: Experts

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January 24, 2025

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The Trump administration’s long-promised “largest mass deportation operation” in U.S. history, which was announced to begin “on day one,” has so far resulted in what some experts and immigration advocates suggest are an average number to mild increase in arrests and deportations. Activists, experts, and journalists are working to provide context to the White House’s claims of its own effectiveness.

“The White House said immigration agents have arrested 538 undocumented immigrants with criminal records and deported ‘hundreds’ more,” The Washington Post reported Friday. “Those numbers, if accurate, would be relatively modest for U.S. Immigration and Customs Enforcement surge operations — a possible indication that the Trump administration’s show of force has so far outpaced the government’s capacity to deliver on the president’s lofty goals.”

Ahead of his inauguration on Monday, the media was awash with reports that President Trump’s mass deportation of undocumented immigrants would start Tuesday, the day after he was sworn into office, and one day after it was originally supposed to. Chicago was identified in reports as the first city to be targeted by Trump’s U.S. Immigration and Customs Enforcement authorities.

“ICE will start arresting public safety threats and national security threats on day one,” Trump’s “border czar,” Tom Homan said, according to the BBC. “We’ll be arresting people across the country, uninhibited by any prior administration guidelines.”

RELATED: ‘Hunting Grounds’: Trump Cancels Biden Ban on ICE Arrests at Schools, Churches, Hospitals

But Homan, who served as acting director of ICE during Trump’s first administration, then served up a curious claim: “Why Chicago was mentioned specifically, I don’t know.” He went on to suggest that the “leaked” Chicago details could be putting the safety of federal agents at risk.

“What was leaked in Chicago was more specific, what was happening, and that raises officer safety concern,” Homan said, according to The Hill.

Homan on Fox News had promised a “big raid” across the country, BBC had reported, and “has previously said Chicago will be ‘ground zero’ for the mass deportations.”

The mass arrests and deportations, despite appearing to be average, were heralded by the media.

Wednesday night, Fox News host Jesse Watters posted video to his Facebook page, declaring, “FOX NEWS ALERT: The largest mass deportation operation in American history is underway, and Primetime has exclusive photos of ICE’s first arrests.”

READ MORE: ‘Not Good’: Trump Proposes ‘Getting Rid of’ FEMA, Conditioning California Aid on Voter ID

Numerous media outlets blared that the Trump administration on Thursday arrested 538 undocumented immigrants.

And yet, according to a former Capitol Hill staffer, President Joe Biden’s average was often higher.

The White House on Friday posted an image to social media, declaring, “Deportation Flights Have Begun.”

Immigration experts, activists, and journalists pushed back hard.

“Deportation flights were taking place under Biden too. What’s new is the military aircraft,” noted The Bulwark’s Sam Stein. CNN’s Brian Stelter added, “Also new: The PR strategy.”

PR appears to be a major focus.

The Washington Examiner’s DHS reporter, Anna Giaritelli, quickly corrected the record on the White House’s above social media post: “DHS official authorized to speak with media said this is not a deportation flight — these are roughly 80 Guatemalans who were arrested AT the southern border recently and are being REPATRIATED. That is legally not a deportation.”

Immigration activist Thomas Cartwright, who, according to The Washington Post “tracks ICE deportations for the immigrant advocacy group Witness at the Border,” pointed to this data, and also challenged the White House’s narrative.

“Theater of the absurd,” he charged. “The only thing new about this is subjecting people to transport on a cargo plane rather than charter and the LOWER number of people on the plane – 75-80 compared to the average for ICE deportation flights to Guatemala of 125. In 2024 there were 508 deportation flights to Guatemala and in 2020 – 2023: 247, 184, 369, and 470, respectively. The 508 in 2024 represents just under an average of 10 deportation flights per week to Guatemala. Counting this flight there have been only 5 this week through Thursday.”

Immigration attorney Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, also responded to the White House’s post: “This is utter propaganda and you have to make sure not to fall for it. There were dozens of deportation flights every single week over the last year and before that. Deportation flights never stopped. If they try to claim otherwise, they are lying to the American people.”

Reichlin-Melnick also blasted White House Press Secretary Karoline Leavitt in response to another of her posts on immigration. “Are these people seriously trying to suggest the deportation flights have not already been going on? They’re lying to you. The Biden administration had already ramped up deportations from the border to a higher level than it was under the Trump admin.”

And pointing to Cartwright’s data, he noted, “In 2024, ICE carried out an average of 4.27 deportation flights per day (which includes weekends and holidays) The normal weekday total was above 6 deportation flights a day, per @thcartwright. Deportation flights never stopped. This is propaganda.”

Meanwhile, The New York Times’ Hamed Aleaziz on Friday afternoon told MSNBC that the Trump administration is really going “on the offensive when it comes to putting out pictures of ICE deportations from the White House Twitter account, from Tom Holman being on several new spots, talking about deportations, it is front and center. And I think it’s an effort to show that President Trump is fulfilling this promise of mass deportations.”

He says their goal is they “want people to be uncomfortable. They want there to be a climate of fear. And ultimately, maybe people will decide that they want to leave this country voluntarily?”

See the social media posts above or at this link.

READ MORE: Danish MP Follows Profane Message to Trump With Warning to Greenlanders on US Civil Rights

 

Image via Reuters

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‘Not Good’: Trump Proposes ‘Getting Rid of’ FEMA, Conditioning California Aid on Voter ID

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January 24, 2025

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President Donald Trump intensified his attacks on the Federal Emergency Management Agency during a visit to Hurricane Helene-damaged parts of North Carolina on Friday, announcing he is planning on reforming or “getting rid of FEMA,” and proposed an unprecedented move to condition disaster relief on the passage of a voter ID law by California’s lawmakers, “as a start.” Trump’s trip, which will include travel to California later Friday, appears designed to target the emergency management agency, which he has been criticizing for months.

In what appeared to be scripted remarks, Trump later elaborated that he would “sign an executive order to begin the process of fundamentally reforming and overhauling FEMA, or maybe getting rid of FEMA. I think frankly, FEMA’s not good. I think when you have a problem like this, I think you want to go and, uh, whether it’s a Democrat or Republican governor, you want to use your state to fix it and not waste time.”

“Calling FEMA and then FEMA gets here and they don’t know the area,” Trump claimed. “They’ve never been to the area and they want to give you rules that you’ve never heard about, they wanna bring people that aren’t as good as the people you already have,” he alleged.

“FEMA turned out to be a a disaster. And you could go back a long way, you could go back to Louisiana, you could go back to some of the things that took place in Texas. And it turns out to be the state that ends up doing the work. It just complicates it. I think we’re gonna recommend that FEMA go away. And we pay directly and we pay a percentage to the state, but the state should fix it.”

RELATED: Is Trump Using Project 2025 to Eliminate FEMA?

In his wide-ranging remarks, President Trump also claimed that “rather than going through FEMA,” disaster relief aid to California and North Carolina “will go through us,” meaning, through his administration. FEMA is a federal government agency under the wide umbrella of the U.S. Department of Homeland Security. The president nominates the HHS Secretary, a cabinet level official, and the FEMA administrator.

And Trump appeared to say that he will assign Republican National Committee chairman Michael Whatley to manage financial aid to North Carolina, removing FEMA from the state.

“Trump also said FEMA would not be involved in further relief efforts and instead suggested that Whatley, North Carolina Governor Josh Stein (D), and a trio of Republican House members would be working with the White House directly because the agency ‘hasn’t done the job,'” The Independent reported.

“I wanna see two things in Los Angeles,” Trump also told reporters late Friday morning, “voter ID so that the people have a chance to vote, and I want to see the water be released and come down into Los Angeles and throughout the state. Those are the two things. After that, I will be the greatest president that California ever has ever seen.”

“I want the water to come down and come down to Los Angeles and also go out to all the farm land that’s barren and dry,” Trump claimed. This week the President appeared to suggest that water runs only north to south.

READ MORE: Danish MP Follows Profane Message to Trump With Warning to Greenlanders on US Civil Rights

“So, I want two things,” Trump repeated, “I want voter ID for the people of California. They all want it. Right now you have no, you don’t have voter ID. People want to have to voter identification. You wanna have proof of citizenship. Ideally, you have one-day voting, but I just want voter ID to start, and I want the water to be released, and they’re gonna get a lot of help from the U.S.”

Trump later responded to a reporter’s question about his remarks on ending FEMA, calling the agency “a very big disappointment” that costs “a tremendous amount of money.” He alleged, “they end up in arguments if they’re fighting, all the time over who does what, it’s just it’s just not a good system.”

“I think it’s, I think when there’s a, uh, when there’s a problem with the state, I think that that problem should be taken care of by the state. That’s what we have states for. They take care of problems, and a government can handle something very quickly,” Trump said, appearing to not mention the scope of FEMA’s actions, responsibilities, and resources.

Jordan Weissmann, reporter for Yahoo Finance covering federal agencies, offers this explanation on California water: “The water issue Trump is fixated on doesn’t really have anything to do with the wildfires. It’s a fight between Central Valley farmers and Northern California farmers and environmentalists about who gets more fresh water.”

Watch the videos above or at this link.

READ MORE: Trump’s J6 Pardons Are ‘High Crime’ and ‘Abuse of Power’ Legal Expert Says

 

Image: Trump, First Lady Melania Trump and Franklin Graham in North Carolina Friday, via Reuters

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Danish MP Follows Profane Message to Trump With Warning to Greenlanders on US Civil Rights

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January 24, 2025

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President Donald Trump’s desire to acquire Greenland from Denmark isn’t going over well with some Danes, including one of Denmark’s politicians who used vulgarity to express his opposition earlier this week, and is now citing a century-long historical record to issue a warning to Greenlanders on America’s refusal to grant full voting rights to its citizens in U.S. territories.

Anders Vistisen, a Danish Member of the European Parliament, reminded Trump earlier this week that “Greenland has been part of the Danish Kingdom for 800 years,” and “is not for sale.”

“Let me put it in words you might understand: Mr. Trump. f*** off,” Vistisen said.

Thursday night on CNN, Vistisen, a member of a right wing populist party, expanded his battle against Trump’s aspiration to annex Greenland.

READ MORE: Trump’s J6 Pardons Are ‘High Crime’ and ‘Abuse of Power’ Legal Expert Says

Addressing what he called the “argument that America can make a great deal,” an apparent reference to Donald Trump, Vistisen said, “we actually have some historical precedence for this. A hundred years ago we sold you what you call the U.S. Virgin Islands. Today, that territory still doesn’t have voting rights for your presidential elections.”

“That place doesn’t have a voting member of your parliament, the Congress — or the House of Representatives, and the Senate, and when I visited, when we had the hundred years commemoration, there was not a great lot of enthusiasm about the way the U.S. is handling that.”

“So I think if the Greenlandic people are looking carefully at this and they are looking on the U.S. overseas territories,” Vistisen continued, “looking at how Indigenous people are treated in the U.S., it’s very hard to make a compelling argument that they will have a better deal from the United States than what they have within the Danish realm, the kingdom of Denmark, where they have full voting rights in the Danish parliament are actually are overrepresented, and as you clearly stated, they have a very beneficial agreement, economically with Denmark.”

The Atlantic’s David Frum, a former Bush 43 White House speechwriter, responded to Vistisen’s remarks.

“In 1917, Denmark (legally neutral but sympathetic to the Allies) sold the [Virgin] islands to the USA to prevent Germany from seizing them for a submarine base. Also, the islands were economically desperate, and war-isolated Denmark could not aid them. As part of the deal, the US guaranteed Danish sovereignty over Greenland. Another reason that seizing Greenland would be an act of US bad faith,” Frum wrote.

Watch the videos above or at this link.

READ MORE: Is Trump Using Project 2025 to Eliminate FEMA?

 

Image by Elekes Andor via Wikimedia Commons and a CC license

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