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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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COMMENTARY

Trump An ‘Enemy of the Constitution’ Declares Nicolle Wallace, Blasting Call to ‘Terminate’ Nation’s Founding Document

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MSNBC’s Nicolle Wallace slammed Donald Trump as an “enemy of the Constitution” on Monday after the ex-president, over the weekend, called for the U.S. Constitution to be terminated.

Trump demanded “the termination of all rules, regulations, and articles, even those found in the Constitution,” in light of his most recent – and false – claim the 2020 presidential election was stolen.

That was Saturday, on his Truth Social account.

On Monday, Trump denied having ever said it, despite the post still being up.

Wallace characterized Trump’s call to terminate the Constitution “an extraordinary statement even by the standards of a failed wannabe autocrat who plotted a coup against his own government and recently dined with white supremacists.”

READ MORE: ‘Venom’: Experts Shocked as Gorsuch Angrily Accuses Colorado of Forcing Anti-LGBTQ Baker Into ‘Re-Education Program’

“The disgraced ex-president made his contempt for our democracy as clear as ever, when he called for the United States Constitution to be ‘terminated.'”

Quoting The Washington Post, Wallace said: “Trump’s message on his Truth Social platform reiterated the baseless claims he has made since 2020, that the election was stolen, but he went further by suggesting that the country abandon one of its founding documents.”

She also played a clip of Republican Congressman Dave Joyce of Ohio from Sunday’s ABC News.

Rep. Joyce in the clip twists and turns but ultimately admits that if Trump is the GOP nominee for president in 2024 he will vote for him.

READ MORE: Anti-LGBTQ Slurs on Twitter Up Over 800% as Musk Allows Thousands of Previously Banned Users Back: Reports

“Well, again, it’s early I think there’s gonna be a lot of people in the primary I think at the end of the day, you will have — wherever the Republicans tend to pick up I will fall in behind because that’s –”

ABC News’ George Stephanopoulos interjected, asking,”Even if it’s Donald Trump, as he’s called for suspending the Constitution?”

“Again, I think it’s gonna be a big field. I don’t think Donald Trump’s gonna clear out the field like he did in 2016.”

“I will support whoever the Republican nominee is,” Joyce added.

“And I don’t don’t think that at this point he will be able to get there because I think there’s a lot of other good quality candidates out there.”

“He says a lot of things,” Joyce continued, refusing to denounce Trump.

“Let’s not speed past that moment,” Wallace urged. “This is exactly how Trump happened. All the Republicans in Washington and around the country said, [Trump] ‘says all sorts of stupid you know what. Dorsn’t mean he’s going to do it.'”

“He did all of it, all of it. And then some,” she chastised.

Watch below or at this link.

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'REGURGITATING RIGHT WING TALKING POINTS'

‘Venom’: Experts Shocked as Gorsuch Angrily Accuses Colorado of Forcing Anti-LGBTQ Baker Into ‘Re-Education Program’

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U.S. Supreme Court Justice Neil Gorsuch appeared angry and even hostile at several points throughout Monday’s oral arguments in a case brought by a Colorado right-wing evangelical Christian website designer who is suing the state because she wants to be able to discriminate against same-sex couples who are getting married.

The case, 303 Creative LLC v. Elenis, promises to be one of the most important of the term, and arguments extended more than two hours.

During one of the more heated moments, conservative Justice Gorsuch attacked Colorado Solicitor General Eric Olson, claiming the state forced an infamous anti-LGBTQ baker who also went before the Supreme Court, winning his 2018 case in a very narrow ruling, into a “re-education program.”

RELATED: ‘What the Hell, Sam’: Justice Alito Slammed for Making ‘Joke’ About Black Children in KKK Costumes

Jack Phillips, a business owner who refused to bake cakes for same-sex weddings, citing his religious beliefs, was required to attend a class so he could become familiar with Colorado anti-discrimination law.

The Supreme Court’s ruling at the time called it, “additional remedial measures, including ‘comprehensive staff training on the Public Accommodations section'” of Colorado’s anti-discrimination law.

Justice Gorsuch instead called it a “re-education program,” and slammed the state’s Solicitor General, Eric Olson, with it on Monday.

“Mr. Phillips did go through a re-education training program, pursuant to Colorado law, did he not, Mr. Olson?” Gorsuch asked the solicitor general.

“He went through a process that ensured he was familiar –” Olson responded, before Gorsuch cut him off.

“It was a re-education program, right?” the justice blared.

“It was not a ‘re-education program,'” Olson replied, holding his ground.

“What do you call it?” Gorsuch, dissatisfied, pressed.

“It was a process to make sure he was familiar with Colorado law,” Olson explained.

“Some might be excused for calling that a ‘re-education program,’” Gorsuch snapped.

“I strongly disagree, Justice Gorsuch,” Olson said, defending the law.

Slate’s Mark Joseph Stern, who provided the clip above, warns: “It does not bode well for the future of civil rights law that Gorsuch believes a state imposes ‘reeducation training’ on employers when it reminds them how to comply with nondiscrimination rules.”

RELATED: 5 Things You Need to Know About the Supreme Court Ruling in the Gay Wedding Cake Case

“Astounding that Gorsuch, A Supreme Court Justice,” tweeted Adam Cohen of Attorneys for Good Government, “Refers to Colorado giving courses on following civil rights law, As ‘reeducation training.'”

“Like being taught not to discriminate against LGBTQ is the same as being sent to a gulag for protesting communism in the Soviet Union,” he added.

Professor Elizabeth Sepper of the University of Texas at Austin School of Law says, “Justice Gorsuch describes education about antidiscrimination law and compliance as a REEDUCATION PROGRAM. This is beyond offensive. It was a central and SOFT tool of many civil rights movements and was essential to targeting market discrimination.”

Columbia Law School’s Elizabeth Reiner Platt, the Director of The Law, Rights, and Religion Project responded, “OMG Gorsuch repeatedly insists that a training on civil rights law is a ‘reeducation program.’ Good grief.”

Attorney Andrew L. Seidel, Vice President of Strategic Communications for Americans United for Separation of Church and State tweeted, “WHOA. Gorsuch asks a very hostile question about sending the bakery to ‘a re-education program.’ He spits the phrase with venom and repeats it several times. He’s regurgitating right wing talking points.”

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'INAPPROPRIATE'

‘What the Hell, Sam’: Justice Alito Slammed for Making ‘Joke’ About Black Children in KKK Costumes

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The U.S. Supreme Court heard oral arguments Monday in one of the most important cases of the term, a case that will determine if the nation’s highest court will or will not allow a person citing their personal religious beliefs to openly discriminate in the marketplace against same-sex couples.

In likely the most salient and important hypothetical example, Justice Ketanji Brown Jackson described in great detail a photographer wanting to re-create scenes from 1940’s Christmases with Santa Clauses and children, in sepia tones, and making them historically accurate.

She asked the attorney representing the right-wing Christian website designer who does not want to have to provide her product to same-sex couples, if under her legal theory the hypothetical photographer would have to create photos of a white Santa with Black children.

Kristen Waggoner, the Alliance Defending Freedom‘s attorney arguing in favor of anti-LGBTQ discrimination, was forced to admit that the photographer would be able to say they would not take photos of Black children with a white Santa.

RELATED: Listen Live: SCOTUS Hears Christian Right Religion vs. LGBTQ Civil Rights Challenge

Later, Justice Samuel Alito, one of the Court’s most far-right jurists, decided to use Justice Jackson’s hypothetical analogy to make a point, and he did so by mockingly joking about Black children wearing KKK costumes.

“Justice Jackson’s example of that, the Santa in the mall who doesn’t want his picture taken with Black children,” Justice Alito began, getting the basics of the analogy incorrect.

“So if there’s a Black Santa at the other end of the mall, and he doesn’t want to have his picture taken with a child who is dressed up in a Ku Klux Klan outfit, now does that Black Santa have to do that?”

Colorado Solicitor General Eric Olson replied, “No, because Klu Klux Klan outfits are not protected characteristics under public accommodation laws.”

READ MORE: ‘Anathema to the Soul of Our Nation’: Trump Pilloried for Demanding ‘Termination’ of the US Constitution

“And presumably,” Justice Sonia Sotomayor interjected, “that would be the same Ku Klux Klan outfit regardless whether if the child was Black or white or any other characteristic.”

That’s when Alito decided to make a “joke,” while thousands of Americans were listening to the Court’s live proceedings.

“You do see a lot of Black children in Ku Klux Klan outfits all the time,” he said, presumably sarcastically.

He then laughed, and some viewers in the gallery joined with him.

Many on social media were outraged and offended.

“He is so inappropriate today. And offensive,” said Sherrilyn Ifill, the former President and Director-Counsel of the NAACP Legal Defense Fund (LDF). “The Black kids in KuKluxKlan outfits? Not funny. Is this the highest Court of the most powerful country in the world? Good grief.”

Minutes later, NYU School of Law Professor of Law Melissa Murray weighed in, saying, “I’m going to need Justice Alito to stop joking about seeing ‘Black children in Ku Klux Klan costumes.'”

“Seriously, what am I listening to?” she asked, to which Ifill replied, “Just awful.”

“The joke about Black kids in KuKluxKlan outfits?” Ifill also lamented. “No Justice Alito, these ‘jokes’ are so inappropriate, no matter how many in the courtroom chuckle mindlessly.”

Columbia University Professor of Law Katherine Franke tweeted, “Justice Alito is resorting to KKK jokes. Ha ha ha. As if what’s at stake here is funny, and isn’t taking place in a context in which LGBTQ people feel like we have a target on our backs. And, ahem – Klan jokes aren’t funny under any context.”

The Rewire News Group tweeted, in all caps, “I knew Alito wouldn’t be able to resist bringing up the Ku Klux Klan,” and then: “What the hell, Sam.”

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