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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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‘Desperately Needed’: Trump Wants ‘Revival’ of Religion and Ten Commandments in Classrooms

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Jumping on Louisiana’s controversial and likely unconstitutional new law mandating posters of a specific version of the Bible’s Ten Commandments be displayed in every public school classroom, Donald Trump overnight declared the nation “desperately” needs a religious “revival” and called for the religious text to be placed in classrooms across America.

Critics point out that the U.S. Supreme Court in 1980 found a similar law unconstitutional.

“The high court found that the law had no secular purpose but rather served a plainly religious purpose,” the Associated Press reports.

And while some lawmakers are insisting it is a historical document, remarks by Republican Governor Jeff Landry and the bill’s co-author, Republican state Rep. Lauren Ventrella, would appear to undermine that defense.

RELATED: ‘Christian Theocracy’: Ten Commandments Lawmaker Who Can’t ‘Fathom’ Outrage Gets Schooled

“I love the Ten Commandments in public schools, private schools, and many other places, for that matter. Read it — how can we, as a nation, go wrong??? This may be, in fact, the first major step in the revival of religion, which is desperately needed, in our country. bring back TTC!!! MAGA2024” Trump wrote on Truth Social in his all-caps post.

Some critics have been noting Trump has violated many if not most of the Ten Commandments. Some have listed the Ten Commandments and what they say are Trump’s actions in comparison to them.

MSNBC‘s Steve Bennen observed, “Trump is touting the Ten Commandments, despite the fact that he’s broken most of them. No graven images? Check. Honoring the Sabbath? Check. No adultery? Check. No stealing? Check. No bearing false witness? Big ol’ check. No coveting a neighbor’s wife? Check.”

Retired North Carolina Supreme Court justice and former Republican gubernatorial candidate Judge Bob Orr wrote: “The GOP and Trump want parents controlling the books that are in schools NOT educators…but their ok with educators being responsible for teaching children to follow the Ten Commandments – a responsibility that belongs at home with the parents and the church.”

Earlier this week, before Trump’s declaration, The Lincoln Project posted a video on Trump’s relationship to the religious document.

Watch below or at this link.

READ MORE: ‘Fact Checking His Delusions’: Trump’s Falsehoods May Not Be Lies Anymore, Critics Warn

 

 

 

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‘Christian Theocracy’: Ten Commandments Lawmaker Who Can’t ‘Fathom’ Outrage Gets Schooled

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The co-author of the likely unconstitutional Louisiana bill mandating the Ten Commandments be posted in every public classroom from kindergarten through college “can’t fathom” why Americans across the country are so upset.

Republican Governor Jeff Landry signed the bill into law Thursday, after bragging he welcomed civil rights groups that threatened to sue, a promise fulfilled on Thursday by the ACLU, Americans United for Separation of Church and State, and the Freedom from Religion Foundation.

“The first amendment promises that we all get to decide for ourselves what religious beliefs, if any, to hold and practice, without pressure from the government. Politicians have no business imposing their preferred religious doctrine on students and families in public schools,” the group of civil rights organizations said in a statement, The Guardian reported.

Louisiana Republican state Rep. Lauren Ventrella, an attorney who co-authored the bill, told CNN Thursday afternoon she couldn’t even “fathom” why anyone would be upset over the government mandating a religious text be posted on the walls of every classroom.

RELATED: ‘Smug’: Governor Scorched for Signing Ten Commandments Bill as Child Faints

“Look, this nation has gotten out of hand,” Rep. Ventrella said, “with crime, with the bad negative things that are going on.”

Nationwide, crime has plummeted under President Joe Biden, but for decades Louisiana has had the highest murder rate per capita in the country – three times the national average – according to FBI statistics. For overall crime, Louisiana ranks second worst in the country.

“Why is it so preposterous that we would want our students to have the option to have some good principles instilled in them if they don’t hear it at home, let them read it in the classroom,” Ventrella told CNN’s Boris Sanchez. “It’s no different than the Mayflower Compact which is mentioned in the document as well. I don’t understand why this is so preposterous in that litigation is being is being threatened. It doesn’t scare us in the state of Louisiana, we say bring it on.”

Sanchez explained, “if someone has a home in which they choose to believe something different, which is welcome in this country – it’s literally why people fled to come here to found this country to begin with – then they should be allowed to, and it’s not really an option if you’re requiring it to be put up in the wall of the classroom. What do you say to the parents of students or even teachers who don’t share your religious views?”

“Don’t look at it,” Ventrella angrily replied.

“What would you say if your child had to go to a classroom in which the Five Pillars of Islam were required to be on the wall? How would you feel?” Sanchez replied.

“Again, this is not about the Five Pillars of Islam. This bill specifically states, the Ten Commandments, it is a historical document,” she claimed.

READ MORE: How SCOTUS ‘Let Trump Off the Hook’ and ‘Interfered in the 2024 Elections’: Expert

Adding he was trying to help the Louisiana GOP lawmaker “put yourself in the shows of someone you may not understand and their point of view,” Sanchez asked, “How would you feel if you were at the classroom and something you didn’t believe in was required to be on the wall? You can answer that question.”

“I cannot sit here and gather and fathom what – you could give me 1000 hypotheticals, but again, this specific bill applies to this specific text, the Qur’an or Islam that is a very broad statement. We’re specifically talking about a limited text on mind you a piece of paper that’s not much bigger than a legal sheet of paper. Some kids might even need a magnifying glass to read all of this. This is not so preposterous that we’re we’re somehow sanctioning and forcing religion down people’s throat. I’ve heard the comments and it’s just ridiculous.”

Critics are furious.

Former Republican U.S. Congressman Joe Walsh replied, “Yes, what Louisiana just signed into law is unconstitutional & will be struck down by the courts. But this is just the latest evidence that my former political party would abandon the Constitution to make America a Christian theocracy.”

“Interesting State Rep. Ventrella says if students aren’t hearing about the Ten Commandments in the home they should hear it in school — which contradicts numerous bills they passed against schools teaching things parents don’t want taught,” observed Nexstar’s capitol bureau chief Shannon Heckt remarked.

Democratic National Committee chairman Jaime Harrison issued a statement in response.

“Watch this… folks this has very little to do with actual religion (because I guarantee you the majority of the MAGA Republicans who voted for this in the legislature don’t live up to these commandments),” he began. “As a Christian, I don’t feel compelled to force my religion and beliefs on others. I believe my path to salvation is paved by my actions and not impacted by the actions & beliefs of others.”

“My friends.. this is about control… these right-wing MAGA extremists want to control every aspect of our lives: control our bodies; who we love; who we pray to; how we express ourselves; what we read; who we vote for; and so much more,” he continued. “They are extreme, dangerous and unhinged. This is no time… this is no election to FAFO, because our freedoms and all we hold dear are on the ballot this November. Don’t be silent… let your voice be heard!”

Watch below or at this link.

READ MORE: ‘Fact Checking His Delusions’: Trump’s Falsehoods May Not Be Lies Anymore, Critics Warn

 

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‘Smug’: Governor Scorched for Signing Ten Commandments Bill as Child Faints

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Louisiana Republican Governor Jeff Landry signed into law on Thursday legislation mandating a version of the Bible’s Ten Commandments must be posted in every public school classroom, after bragging he looked forward to civil rights groups suing him. Gov. Landry, the former state attorney general, has been criticized nationally for what experts say is a violation of the First Amendment, but that criticism widened Thursday as a little girl standing behind the governor appeared to faint as the governor continued his remarks (video below), apparently without noticing.

After the governor described the bill to tremendous applause from guests, the child fell to the floor. Governor Landry, seemingly unaware, continued, declaring, “if you want to protect the rule of law you got to start from the original law giver.”

Highlighting what some experts see as the First Amendment violation in the law he was about to sign, Landry continued, claiming Moses was the original lawgiver.

READ MORE: ‘Morally Bankrupt Loser’: Top Trump VP Contender Wants to Deport 20 Million People

Historians and religious experts might disagree with the governor. In some cultures, for example, Hammurabi, King of Babylon, is credited as the original lawgiver. In Ancient Greece, Athenian statesman Solon is considered to have that role. And in ancient India, that role belonged to Manu.

Responding to Landry’s “original lawgiver” remark, researcher Eric Kleefeld commented, “If that’s your rationale, then you ought to be posting the Code of Ur-Nammu, the oldest known set of written laws that archaeologists have ever found, from ancient Sumeria.”

Critics blasted Landry, both for not realizing the child directly behind him had fallen ill, and for the alleged First Amendment violation.

“Gov. Landry with a self-satisfied smug look while a young child passes out behind him,” remarked MSNBC legal correspondent Katie Phang.

“Christian Nationalism is front and center in the South. Scared of Project 2025? It’s happening in our states,” commented U.S. Rep. Maxwell Frost (D-FL).

READ MORE: How SCOTUS ‘Let Trump Off the Hook’ and ‘Interfered in the 2024 Elections’: Expert

“Remember everyone…this is about the kids. Not the one me whom literally passed out behind him. But, definitely kids,” commented former Lincoln Project executive director Fred Wellman.

Louisiana ranks near the bottom in education, at number 47 according to U.S. News and World Report.

Watch the video below or at this link.

RELATED: ‘I Can’t Wait to Be Sued’ Gov. Brags Over Ten Commandments Bill – Rights Groups Vow To Oblige

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