In public prayer case, the Supreme Court strikes another blow against American democracy

By Michael J.W. Stickings

The right-wing Republican majority on the Supreme Court has once again struck a blow against the very essence of American democracy, against the very idea of America itself.

When it's not handing democracy to the rich, effectively disenfranchising everyone else, or claiming that racial discrimination is no longer a problem, to name but two of its more prominent right-wing efforts of late, the Roberts Court, dominated by ideologues like Scalia but with the somewhat more pragmatic Kennedy often voting with the conservative majority, is tearing down the separation of church and state, that fundamental principle that guided the Founders and that is as essential as ever given fundamentalist efforts to theocratize America in stark contrast to its founding principles. And this effort was on display again today:

The Supreme Court on Monday ruled that a town in upstate New York did not violate the Constitution by starting its public meetings with a prayer from a "chaplain of the month" who was almost always Christian.

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that divided the court's more conservative members from its liberal ones, said the prayers were merely ceremonial. They were neither unduly sectarian nor likely to make members of other faiths feel unwelcome.

"Ceremonial prayer," he wrote, "is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define."

In dissent, Justice Elena Kagan said the town's practices could not be reconciled "with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share of her government."

Town officials in Greece, N.Y., near Rochester, said that members of all faiths, and atheists, were welcome to give the opening prayer. In practice, however, almost all of the chaplains were Christian. Some of their prayers were explicitly sectarian, with references, for instance, to "the saving sacrifice of Jesus Christ on the cross."

Kennedy's argument isn't entirely crazy, but it makes less and less sense as you consider that what is just "ceremonial" from one perspective may be theocratic and proselytizing on the other, and it's that other perspective that is very much at the core of activist conservative efforts to turn America into a (right-wing) Christianist state.

What's more, offering the opportunity to minority groups (in this case Jews or atheists, mostly) to have their own prayers recited doesn't fix the problem of effectively granting primacy to one religion in particular -- and the fact that the prayers themselves weren't necessarily welcoming, as when they tout the primacy of Christianity and indeed of certain strains of Christianity, only proves that point. Really, how is a non-Christian supposed to feel welcome when a government opens its proceedings with a prayer that refers to "the saving sacrifice of Jesus Christ on the cross"? Even if they wanted to offer their own prayer, how could non-Christians not feel excluded from their own government, from their own community, by their own fellow citizens?

No one is saying that organized religion, or spirituality generally, has no place in American life. While I personally abhor organized religion, what people choose to do in private, whatever "god" they choose to worship, is for the most part their own business, as long as no one gets hurt, as long as more fundamental rights are respected. But religion should have no place whatsoever in the public space except perhaps in some contexts when it is treated as history and anthropology -- it absolutely has no place where government, the self-governance of free and equal citizens, is considered. Just don't expect this deeply anti-American Supreme Court to defend what is fundamentally American.

The bigots will stop at nothing (updated)

By Michael J.W. Stickings 

UPDATE: Fail.

**********

From the L.A. Times:

ProtectMarriage, the sponsors of Proposition 8, filed an emergency petition to the U.S. Supreme Court on Saturday to stop same-sex marriages from continuing in California.

The petition says the decision by the U.S. 9th Circuit Court of Appeals to permit weddings starting Friday afternoon was "premature."

It's Justice Kennedy, who of course wrote the majority opinion that struck down the Defense of Marriage Act, who will rule on this petition, as he is responsible for the 9th Circuit Court. Tom Goldstein of SCOTUSblog explains:

The application argues that the Supreme Court’s ruling in the Proposition 8 case is not yet "final," so the stay must remain in place. The Supreme Court ordinarily does not issue its formally binding ruling – known as the "judgment" – in a case from a federal court of appeals until 25 days after it releases its "opinion." Because the Court issued its opinion in the Proposition 8 case on June 26, it would by default not issue the judgment until Monday, July 22. (The 25th day is July 21, a Sunday.) The principal point of that delay is to permit the losing party to prepare and submit a petition for rehearing to the Justices, though such petitions are as a practical matter never granted.

So basically, the bigots behind Prop 8 want more time to prepare to continue to fight for their bigotry, and to "delay the inevitable," as Goldstein writes. In any event, Goldstein thinks this emergency petition will "likely" fail, for a variety of pretty solid reasons.

What's clear, though, is that the bigots are desperate, and will stop at nothing. So extreme is their bigotry.

SCOTUS rulings on DOMA and Prop 8: A great day for gay rights, equality, and America's noblest ideals

By Michael J.W. Stickings

(photo from the San Francisco Chronicle)

Wednesday, June 26, 2013 was quite the day:

Well, a really good, and potentially historic, day for gay rights, equality, and the ideals to which America professes to aspire.
— Michael Stickings (@mjwstickings) June 26, 2013

No, not a perfect day in these terms:

-- SCOTUS's Prop 8 ruling was based on standing, not on the merits of the case, and so not in and of itself a validation of same-sex marriage. The lower court ruling against Prop 8 stands, meaning that same-sex marriage is now legal in California, but this has no impact on other states.

-- SCOTUS did find the odious DOMA unconstitutional in that it violates the Fifth Amendment, and this is a much greater victory, but state laws against same-sex marriage remain in place and states are not required to recognize same-sex marriages from other states.

The hope is that the argument against DOMA -- "deprivation of the liberty of the person protected by the Fifth Amendment," Justice Kennedy wrote for the majority -- ultimately applies in some form to states as well.

But here's also a sense that the Roberts Court as currently constituted may simply want to move on from this. It didn't block progress, and didn't pull a Dred Scott (issuing a terrible ruling that will be widely ridiculed in future). It struck down a federal law as many lower courts had done, and it stayed out, more or less, of a state matter. Sure, we know where Scalia, Alito, and Thomas stand on the matter, but as a whole SCOTUS, perhaps rather predictably, fell short of making a sweeping decision and sent the matter back to the states to deal with. Which is to say, it took a generally conservative view of federalism and waved progress along without interfering too much, nudging it back on the right track.

In any event, these two rulings add up to a major, historic victory for same-sex marriage and, more broadly, as I tweeted, for the ideals to which America professes to aspire.

With so much of the political landscape dominated by Republican extremism, obstructionism, and scandalmongering, with so little being done to address America's problems (including its culture of rampant gun violence), with President Obama pushing an old-fashioned moderate Republican agenda instead of progressive change (we can believe in), and with so much recent attention on the NSA and the growing surveillance state, and the erosion of civil liberties that that entails, I must say I had lost a great deal of whatever hope and optimism I had left, which wasn't much but still something to cling to.

No, the world didn't change yesterday, but for once things seemed to get a whole lot better.

**********

Here, from TPM via Mustang Bobby, is the day, a great day, in 100 seconds:

Is DOMA dead?

By Michael J.W. Stickings

Here's Lyle Denniston of SCOTUSblog, in line with most of the initial commentary after today's oral argument:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though – that the Court majority might conclude that there is no live case before it at this point.

This would be very good news. DOMA is legislated bigotry that deserves to die.

Read more »

Supreme Court may dismiss Prop 8 case

By Michael J.W. Stickings

From the Times, it looks like a majority opinion may be emerging on the Supreme Court regarding the same-sex marriage case currently before it:

As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it. 

"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. "If the issue is letting the states experiment and letting the society have more time to figure out its direction," she said, "why is taking a case now the answer?"

This would hardly be the optimum outcome for same-sex marriage supporters such as myself. But it wouldn't be a bad one, and it may be the best possible one from this court. 

Read more »