Thursday, October 23, 2014

Why is the right celebrating something that will get undone shortly?

Peter Sprigg - FRC
Why is this guy smiling?
According to Peter Sprigg at Family Research Council, U. S. District Court Judge Juan M. Pérez-Giménez of Puerto Rico has a monopoly on legal wisdom:
The fundamental basis of the opinion by Judge Pérez-Giménez was a simple one, but one that most of the other courts addressing this issue have sidestepped—namely, that there is already binding Supreme Court precedent on whether the U.S. Constitution requires states to permit “marriages” of same-sex couples, and the answer is, “No.”
Ah, yes, Baker v. Nelson in 1972 is precedent.  As Justice Ginsburg explained in oral argument during the Proposition 8 case; At the time of Baker, “the Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.” It's a given that substantial doctrinal changes affect precedent. That is why Justice Scalia opined that Lawrence v. Texas opened the door to same-sex marriage. Of course the Court has also decided United States v. Windsor. Baker is quite dead.

Getting past the dumb arguments and a judge who seems to have quoted National Organization for Marriage rhetoric in his opinion, the matter will now proceed to the First Circuit Court of Appeals. The First Circuit is responsible for Maine, Massachusetts, New Hampshire, Rhode Island, Vermont and Puerto Rico. Based in Boston, three of the six active judges were appointed by Obama (plus one GW Bush, one Clinton and one Reagan). It is a very liberal court. Moreover, given that all of the states in the district enjoy marriage equality, the issue would seem to be settled.

Ian Millhiser at Think Progress provides a very thorough review of this decision. No reason to repeat what has already been done. Meanwhile when it comes to same-sex marriage I suppose that at this point any minuscule tidbit of hope is great news for Family Research Council and Rev. Sprigg.

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