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Federal Judge’s Missouri Pro-Marriage Ruling Takes Swipe At 6th Circuit Anti-Marriage Ruling

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It’s not unusual for one court to refer to another court’s rulings in similar cases. But a federal judge seems to be admonishing a higher court’s flawed ruling. Is he?

Today, federal Judge Ortrie D. Smith issued a ruling striking down Missouri’s ban on same-sex marriage. The ruling was not unusual – over 50 rulings in support of marriage for same-sex couples have been made since last year’s Supreme Court DOMA decision, and only a handful in opposition.

One ruling opposing same-sex marriage, or, more accurately, one ruling supporting the constitutionality of state bans on same-sex marriage came yesterday from the 6th Circuit Court of Appeals.

That ruling, which many consider flawed, is based in part on the opinion of Judge Jeffrey Sutton.

Judge Sutton yesterday claimed that “the people” know best and their decision on the rights of the minority should be respected.

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

It’s Judge Martha Craig Daughtrey‘s 6th Circuit dissent that so aptly frames that majority opinion of Judge Sutton.

She writes, “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.”

Judge Daughtrey adds, “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 short, she says, Judge Sutton is saying the will of the majority should be respected, not the will or rights of the minority.

Today, in what appears to be a rebuke of the higher court’s – of Judge Sutton’s ruling – is the ruling of Judge Ortrie D. Smith.

This is long but wholly worth reading:

“The Court does not take lightly a request to declare that a state law is unconstitutional,” Judge Smith writes. “Statutes are passed by the duly elected representatives of the people. Article I, section 33 constitutes the direct expression of the people’s will.”

It is not on a whim that the Court supplants the will of the voters or the decisions of the legislature. But it should not be forgotten that the Constitution is also an expression of the people’s will. Indeed, it is the paramount expression of the people’s will; it cannot easily be cast aside or circumvented by a vote of the citizens of a single state. 

[Bolding ours]

In other words, it seems Judge Smith is telling Judge Sutton, do your job.

Judge Smith continues:

Just as Missouri citizens cannot abridge the First Amendment by amending the Missouri Constitution, they cannot abridge the Fourteenth Amendment in that manner. As  Alexander Hamilton explained in describing the Constitution’s preeminent place in the rule of law: 

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. 

The Federalist No. 78 (Alexander Hamilton). Later, Hamilton described the importance of the judiciary’s role in insuring the Constitution’s role as the preeminent law of the Nation, stating the judiciary’s role includes: 

guard[ing] the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Id. It is the Court’s view that the provisions of this statute and this section of the Missouri Constitution contravene the United States Constitution. Having reached that conclusion, it is the Court’s obligation to give effect and force to the United States Constitution.

Pretty much a slap down, wouldn’t you say?

 

Image by StockMonkeys.com via Flickr

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Tennessee Governor Slammed After ‘Praying’ for Nashville School Community Without Mentioning Mass Shooting

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March 27, 2023

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Governor Bill Lee quickly drew tremendous outrage in the wake of a school mass shooting where six people including three young children were shot to death. Social media users criticized the Tennessee Republican, who had signed a permit-less gun carry law, for declaring he was “praying for the school, congregation & Nashville community,” without posting any mention of the mass shooting.

Tweeting he was “closely monitoring the tragic situation at Covenant,” Gov. Lee said, “As we continue to respond, please join us in praying for the school, congregation & Nashville community.”

There was no mention of any loss of life, and, as Moms Demand Action founder Shannon Watts passionately noted, the “situation” was a mass shooting.

“If thoughts and prayers alone worked to stop gun violence, there wouldn’t have been a shooting at a Christian elementary school. It’s your actions – including weakening the state’s gun laws – that’s killing kids in Tennessee,” Watts also tweeted. “SHAME ON YOU.”

Gov. Lee signed a permit-less carry bill into law in 2021, at a Beretta gun manufacturing plant.

According to the CDC, as of 2020 – one year before the permit-less carry bill was signed into law – Tennessee ranked tenth in the nation in per-capita firearm mortality.

READ MORE: ‘Our Children Deserve Better’: First Lady Jill Biden Speaks Out After Six Die in Nashville School Mass Shooting

Meanwhile, others took notice of the gun culture Gov. Lee has fostered in “The Volunteer State.”

MSNBC analyst and Bulwark writer Tim Miller commented, “Tennessee governor Bill Lee issued a statement recently about how the drag ban in Tennessee ‘protects children.’ If only he would have instead focused on laws that might have prevented the mass murder of children in his state today.”

Historian Kevin Kruse pointed to an article from last year, after the Uvalde, Texas school shooting, titled: “Rep. Clemmons Seeks Renewed Gun Laws, Gov. Lee Requests Prayer.”

“You chose prayer over gun reforms last year after the Uvalde massacre,” Kruse wrote. “And now here we are.”

The progressive website Tennessee Holler pointed out that Gov. Lee, along with GOP lawmakers, “just appointed Jordan Mollenhour to the [state] board of education— whose company was sued for selling ammo to an underage mass killer (SANTA FE) and sold ammo to at least one more (AURORA) He has ZERO education experience.”

Let’s Give a Damn founder Nick Laparra tweeted, “We are 86 days into 2023. So far, 9859 people have died by gun violence and there have been 128 mass shootings. Meanwhile, @GovBillLee spends his days being outraged over drag queens and CRT and book bans. This is Bill Lee’s and the GOP’s fault.”

See the tweets and video above or at this link.

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Mystery Grand Jury Witness in Trump Hush Money Probe Is Former ‘Enquirer’ Publisher and Trump Ally

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March 27, 2023

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Avid followers of the Manhattan District Attorney’s moves noted the grand jury had been called into service for Monday, and soon news leaked that yet another witness would be testifying in the probe into Donald Trump’s alleged hush money payment to Stormy Daniels.

Monday afternoon, NBC News’ Garrett Haake reported live on MSNBC that the mystery witness was David Pecker, the former tabloid publisher of the “National Enquirer,” who reportedly had been looking for stories in 2016 to protect Donald Trump’s presidential campaign. Haake notes Monday was Pecker’s second appearance before the grand jury in the hush money case.

The New York Times also reported David Pecker as the grand jury witness, calling Pecker “a key player in the hush-money matter. He and the tabloid’s top editor helped broker the deal between the porn star, Stormy Daniels, and Michael D. Cohen, Mr. Trump’s fixer at the time.”

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“While the focus of Mr. Pecker’s testimony is unclear, he could provide valuable information for prosecutors. A longtime ally of Mr. Trump, he agreed to keep an eye out for potentially damaging stories about Mr. Trump during the 2016 campaign,” The Times reports. “For a brief time in October 2016, Ms. Daniels appeared to have just that kind of story. Her agent and lawyer discussed the possibility of selling exclusive rights to her story of a sexual encounter with Mr. Trump to The National Enquirer, which would then promise to never publish it, a practice known as ‘catch and kill.'”

Former Deputy Assistant Attorney General Harry Litman weighed in, noting, “nothing about that decision [to have Pecker testify] suggests any change of heart on Bragg’s part to indict Trump.”

Former Dept. of Defense Special Counsel Ryan Goodman, an NYU professor of law, notes that Pecker’s “testimony can show the [hush money] scheme was designed to affect outcome of election.”

“He reportedly communicated directly with Trump on payment,” Goodman adds.

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‘Our Children Deserve Better’: First Lady Jill Biden Speaks Out After Six Die in Nashville School Mass Shooting

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5 hours ago

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March 27, 2023

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First Lady Dr. Jill Biden, speaking Monday afternoon at a National League of Cities conference, told attendees, “Our children deserve better,” as she broke the news of the Nashville school mass shooting at Covenant Presbyterian School where three children and three adults were shot dead.

“You know,” Dr. Biden, herself an educator and clearly pained by the news, began her remarks by saying, “I hate to say what I’m gonna say next because you know you’re so enthusiastic and with so much energy and hope and I feel it.”

“But while you’ve been in this room, I don’t know whether you’ve been on your phones but we just learned about another shooting in Tennessee, a school shooting and I am truly without words and our children deserve better, and we stand – all of us – we stand with Nashville in prayer.”

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The First Lady, a former public high school English teacher and currently a professor of English at a community college, was speaking at the organization’s Congressional City Conference.

Watch Dr. Biden below or at this link.

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