Monday, October 13, 2014

178.2 - Footnotes to the Good News

Footnotes to the Good News

A couple of quick Footnotes to the preceding:

First, Missouri not a state affected by the Supreme Court's refusal to hear the first appeals on same-sex marriage, but even so, just hours after the Court acted, Missouri Attorney General Chris Koster indicated that the state is backing away from defending its own same-sex marriage ban.

Last week, a state judge in Missouri had ordered the state to recognize same-sex marriages legally performed in other states. In a statement Monday, Koster referred to the Supreme Court decision of the appeals and said the state is obligated to honor contracts entered into in other states - which would include marriages.

Missouri's own ban on marriage equality is still in place but it is under legal challenge - as are, in fact, bans in all 20 of the states not affected by recent decisions.

Next up, SCOTUS will only accept a case for review if at least four of the nine sitting justices want to hear it. Assuming the four more moderate members of the court - Ginsburg, Sotomayor, Breyer, and Kagan - voted no, it's interesting if rather pointless to speculate on which of the foul five - Roberts, Thomas, Scalia, Alito, and Kennedy - declined to hear the appeals. There had to be at least two.

Kennedy is a good guess, as he has authored some decisions favorable to same-sex rights. For the other, my money is on John Roberts - because while he's every bit as reactionary as Thomas, Scalia, Alito, he seems less of an ideologue and perhaps rather more concerned than the others about how he will be viewed by history.

Finally, a reminder the fight is not over:

The day after the decision was released, Justice Anthony Kennedy issued a stay of the 9th Circuit Court ruling striking down same-sex marriage bans in Idaho and Nevada. Rather embarrassingly, several hours later he had to revise the order because it covered both states and Nevada had already said it was not going to appeal the Circuit Court decision, so it should only have affected Idaho.

Again, such stays when the losing side declares an intent to appeal is not unusual and in the long run may mean nothing at all, especially since the Supreme Court, having rejected an appeal from other states, would appear unlikely to take up the one from Idaho. As I noted earlier, it will probably take an adverse decision at the appellate level - one upholding marriage discrimination - thus creating a conflict among the Circuit Courts, before SCOTUS will take it up.

The other point on the fight continuing is that even though Wyoming's ban on same-sex marriage should be considered invalidated by the Supreme Court's action, on the appeals from those five states, state officials say they will continue to fight to maintain their bigotry, using the excuse that the suit in question in Wyoming is in state court, not federal court, and therefore, they claim, the Circuit Court ruling is not binding on them.

Considering that this means they are arguing that a state can simply ignore a federal court, it can be taken as a sign of how desperate the bigots are getting.

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