ALL ONE THING OR ALL THE OTHER

I have minimal time tonight so I apologize for not giving this topic the attention it deserves. From Lincoln's famous "house divided" speech:

In my opinion, it will not cease, until a crisis shall have been reached, and passed. "A house divided against itself cannot stand." I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved – I do not expect the house to fall – but I do expect it will cease to be divided. It will become all one thing or all the other.

Either the opponents of slavery will arrest the further spread of it and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction, or its advocates will push it forward till it shall become alike lawful in all the States; old as well as new, North as well as South.

Abe is referring to the various attempts to compartmentalize, minimize, or otherwise make the issue of slavery conveniently recede into the background so politicians would not have to deal with it. Of course they all failed and ultimately the nation had to confront the question directly and decide it definitively.

For years now the Supreme Court has been doing its damnedest to pass the hot potato on gay marriage. Different states have passed different laws regarding it and different federal courts have issued conflicting decisions. Because the Full Faith and Credit Clause of the Constitution requires things like marriage licenses issued in one state to be recognized as valid by others, it simply is untenable for this patchwork, confusing approach to continue. Now that one federal district court has ruled California's Prop 8 unconstitutional we have reached the decision point. Gay marriage bans cannot be unconstitutional in one state or one federal court district but constitutional in others.

We have kicked the can down the road for too long already. It is time to decide whether we will become all one thing or all the other. Is this legal or is it not? Will all states recognize legal gay marriages or will none? The Supreme Court appears to be painted into a corner. An appeal of this decision is a certainty and it is unimaginable that the Court would be so derelict in its responsibilities that it would not accept the case. My confidence in the current Court to make the correct decision here is shaky, but regardless we need this issue to come to a head. The status quo is untenable and it is time for the Supreme Court to do its job.

As an aside, if the dissenting opinion in the Perry case is any indication we are in for some disastrously poor legal reasoning from the gay marriage opponents on the Supreme Court.

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35 Responses to “ALL ONE THING OR ALL THE OTHER”

  1. Mark Says:

    I'm not sure what you're saying really holds: the decision was on fairly narrow grounds, specifically that you can't pass a law whose only purpose is to revoke a right that previously existed. I read a fair bit of the decision and it seems that they went to great lengths to say that the reasoning they used would not apply in the case where the right never existed in the first place and the state failed to take action to grant it.

  2. J. Dryden Says:

    I look forward to the howlingly funny contortions of intellect and precedent that the Alito? Scalia? -penned majority decision will provide us. This is not a 'Brown v. Board of Education' court. This is a 'Plessy v. Ferguson' court, and the latter, I fear, is the kind of decision we can look forward to.

    'Plessy' is a damned entertaining read, if you've got a strong stomach for inadvertent satire–Brown's opinion claims, with a straight face, that just because two facilities are separated because the dominant race who provides the facilities actively loathes the subaltern race, there is no reasonable expectation that they will differ in quality. Sheer…genius. (Harlan's dissent is equally funny, since on the one hand he excoriates the racism that motivates this segregation, but can't help adding, "And, besides, we let the *Chinks* ride in the white cars, so what the hell?")

    There is no reason to assume that this court will accept mere Constitutionality as a justification for allowing Gay Marriage to be the law of the land. Instead, they will find some demented way to offer a false 'equal protection' as a way of denying true 'equality.' Just because the legal reasoning will be (and it will be) disastrously poor, does not mean that it will not prevail with the laissaz-faire bigotry of the majority among the Nine Worthies.

  3. Mike Says:

    The WA state legislature may pass gay marriage in the meantime, and it may survive the inevitable repeal proposition.

    If the SCOTUS kicks the can long enough, they might have to bend to reality. Not that I'm counting on it.

  4. greennotGreen Says:

    Marriage equality will come to this country, probably over the dead bodies of some of our Supreme Court justices, but a substantial majority (and possibly the word "substantial" should be "humongous") of people under thirty do not distinguish between gay rights and human rights. There may be a bunch of old farts standing in the way, but this change is for the better, and it is inevitable.

  5. blahedo Says:

    @J, I'd normally agree that this is more of a "Plessy" court, but the 9th circuit was very clever in two ways: one, they framed their opinion in terms of the right California had already granted, as @Mark points out above, and two, they apparently leaned heavily on several opinions authored by Kennedy (aka "the swing vote"). So it seems plausible to me that the SCOTUS could find a majority to continue kicking the can, upholding the narrow judgement that won't apply to other states.

    Right at the moment, I'm semi-ok with kicking the can for another couple of years, because the rate of change on this issue is incredible and a not-sure-thing now could become a nearly-sure-thing if we just wait a smidge longer. There's action of various forms in the legislatures of at least three states right now, and the *US military* is now lobbying for the repeal of DOMA. Such times we live in….

  6. Middle Seaman Says:

    It's funny to listen to the "legal" arguments made above. The supreme court is run by a extreme right wing junta for whom the letter of the law is immaterial. (Citizen united, the 2000 elections, labor laws, etc.) Justice Kennedy is the only member of the junta with some remnants of rule of law. If this catholic decides against equality for everyone, we are back to 1860's with new slaves and without Lincoln.

    "My confidence in the current Court to make the correct decision here is shaky." I am confident that the Ayatollahs will rule as such.

  7. * Says:

    This above all else is why I vote Liberal – Judicial Nominations.
    Not unlike reproductive rights, who you/I/They choose to love/bond with/marry isn't anyone elses business.
    Your/their marriage does not have any impact on mine & vice versa.
    If "the Gays" want marriage & all of the crap that entails – have at it! I know plenty of divorced heterosexuals who are laughing at the very idea! Not to mention the divorce lawyers!

  8. Tim H. Says:

    This should really draw attention to the right's habit of reserving libertarianism for money. Let them seek heaven, hell or oblivion as they see fit.

  9. c u n d gulag Says:

    I have little or no confidence that this SCOTUS, with 4 right-wing ideologues on it, and Catholic Anthony Kennedy – with a mixed record on gay rights, will do the right thing.

    And let me ask all of the Ralph Nader voters out there – do you still think there was no difference between Gore and Bush?

    Are we having this discussion without Alito and Roberts on the SCOTUS?
    Substitute them with another Kagan and Sotomayor, and this is a different country today – with gay rights, and no Citizens United.
    We're honestly shocked when they vote the correct way – like in Hamden.

    Will there be no difference between Obama and Romney (Santorum? Gingrich? Jeb Bush?).
    Sit on your asses, or vote for some 3rd Party in protest, and we'll find out.
    My money's on A HUUUUUUUUUGE DIFFERENCE!

    As Steve M asks on his great blog, "Who's the worst Republican President in history?"
    http://nomoremister.blogspot.com

    The answer, of course, is, "The next one."

  10. Mrs. Chili Says:

    My confidence in SCOTUS is shaky as well, but I don't think that even they can come up with a legitimate legal reason to overturn the 9th Circuit. It's really just a matter of time…

  11. Steve M. Says:

    Thanks, gulag. For the record, here's the quote:

    My rule of thumb is: The worst president in American history is always the next Republican president.

  12. c u n d gulag Says:

    Sorry I misquoted you, Steve!

  13. xynzee Says:

    Someone once told me that as one gets older, you learn that your greatest ally is time.

    From that perspective, the proponents of this issue have really bungled it. To force the issue and not expect it to go before the SCOTUS, is stupid. To have it go before *this* SCOTUS and think that they would easily pass… well that's just pissing on a bushfire isn't it.

    Let's say that two Justices while Obama is still in Office die and are replaced with another Kagan or Sotomeyer. This hits the SCOTUS which easily says same sex marriage is Constitutional.

    Given the current political climate of the country. Do you think the T-nuts will shrug and accept the state of play, or do you think they'll lose their shit and go 2nd and 10(th Amendment) over this?

    This issue would probably passed much more easily in another few years as it is ultimately inevitable, right now the SCOTUS is not a good place for something like this to be before, and the social climate is tinder dry with a powder keg in the middle.

  14. acer Says:

    @Tim H.:

    "The Libertarian Party has a cute little test that purports to divide American politics into four quadrants. There's the economic dimension (where libertarians ally with conservatives) and the social dimension (where libertarians ally with liberals).

    "I think the diagram is seriously misleading, because visually it gives equal importance to both dimensions. And when the rubber hits the road, libertarians almost always go with the economic dimension."

    http://www.zompist.com/libertos.html

  15. unclemike Says:

    I actually think SCOTUS will punt again. They'll refuse to hear the appeal, the 9th court ruling will stand, gays will start getting married in CA again.

    However, I think SCOTUS will hear whichever of the many DOMA repeal cases that finally ends up at their doorstep. And by then there might be enough states with marriage equality that they almost have to rule to repeal DOMA, and, by accident, pave the way for federally recognized marriage equality.

    Hey, a boy can dream, can't he?

  16. Monkey Business Says:

    Re-electing Obama is important, just to ensure that when Ginsburg retires we get another liberal.

    Of course, there's always hoping Thomas and Scalia get hit by a bus.

  17. blahedo Says:

    @unclemike: Yes, except they won't hear "whichever" DOMA case, they'll combine several of them into a single decision. Brown v Board was actually a SCOTUS decision on five different appellate cases that were all fairly similar but from different circuits, for instance.

  18. ladiesbane Says:

    I'm a fan of patience, but look at how well that worked out for the Equal Rights Amendment. It is reintroduced ever year and fails each time. If that sounds like an exercise in futility, tell me how it would be any different for the legalization of gay marriage.

    (The "oh, it would totally be different this time, totally," argument will not suffice.)

    Why it's any different, legally, from interracial marriage, I don't know. But I wonder about the role of public opinion in lawmaking generally. Interracial marriage became legal in 1967, but more than a decade later, it still had a 38% approval rating among the populace — and yet the Supremes did the right thing, long before it became popular. There was reason. And the same reason applies here. So why haven't we seen the Supremes do the right thing? Are they waiting for Scalia to stroke out?

    The Rev. Jerry Falwell, back in the late 50s, argued that prohibiting segregation would lead to miscegenation, and therefore the watering down of the white race. Can't have THAT, now, can we? It's the same song we hear now about gay marriage Destroying the Sanctity of the Family.

    [And to pip Santorum, why shouldn't polygamy be legal? It would require attention to inheritance laws, another state-to-state fiasco, as well as insurance and other administrative details, but I can't see a reason not to allow it.]

    Ultimately, my hope is that religion-based elements of law be weeded out. I don't care if the almighty Founders worshiped a glow-in-the-dark pepper pot; modern law should not be based on any religious tenets.

  19. Pat Says:

    Yeah, ditto Mark. I think Romer v. Evans is the instructive case here. Either the Supreme Court upholds the decision as applicable only in the case of Prop 8 in California, or it overturns it and leaves the decision to state legislatures or courts interpreting state constitutions, but that can's going to keep rattling down the road a while yet.

  20. Major Kong Says:

    I just don't see how letting two gay people get married would somehow make me less married.

    It's not as if there's only so much marriage to go around and if we let them have some there won't be enough for the rest of us.

  21. Mike Says:

    @xynzee: There's always an argument for waiting just a little bit longer.

    Public opinion is changing, but it didn't just magically change for no reason. It is changing because people pushed the issue.

    Agree there is risk with this SCOTUS, but there is always risk.

  22. acer Says:

    @Monkey Business:
    With all due respect to her, I wish RBG would just retire now.

    How many more functions can she sleep through?

  23. blahedo Says:

    @ladiesbane and @Mike are right, of course, about the problems of continually saying "just wait a little longer". It's especially dangerous when progress is happening very slowly, though, and while I'm not *thrilled* at lack-of-progress, I do actually think that progress is happening pretty fast on its own right now. So, while I won't tell anyone "don't rock the boat" ('cause every boat could do with a bit of rocking), I'm not overly concerned about having to wait for the final result—I think it's definitely on its way, and we won't have to wait very long.

  24. Mike Says:

    @blahedo: I would love to see SCOTUS not intervene for awhile longer. I think that ultimately SCOTUS moves with the times, regardless of the official legal reasoning. And at some point there will be too many married gay couples to put the gay genie back in his box.

    But I do want to see action on the state level, even if that risks SCOTUS getting involved earlier. Because if there is no action at the state level, then there is no action. When people see that the gay-married neighbors next door are basically just like them, it really does win hearts and minds.

  25. Xynzee Says:

    @acer: Unfortunately, she should have retired as soon as Baz took Office. Do you think he'd be able to get anyone on the Court w the current mix of Congress? They'd just stall the crap out of it hoping to get Mitt or He Who Can't Be Googled into Office. Thereby hamstringing another branch of Govt. or worse putting liberals/progressives at an even greater disadvantage for as long as they can.

  26. Xynzee Says:

    There's an interesting thought, the first ungooglable president.

  27. Don Says:

    Well, I agreed with xynzee at first glance – "Someone once told me that as one gets older, you learn that your greatest ally is time." – but then, no, I didn't. I'm 56, and I tell myself (and whoever else will listen) that as one gets older, you start to notice there's not much time to ally yourself with any more. I got married (in California, to a man; I'm a man) on November 3 2008, the last day it remained legal in California. Besides conveniently having my already-settled-on life partner at hand, one of the reasons I decided to get married, the day before we were obviously about to lose the right, was to become exactly the lump of legal indigestion my legal state now is. I really didn't anticipate how much we would find being married matters to us, or how viscerally angry and betrayed friends who didn't make it under that wire would feel. So, to an extent, fuck political calculations. It'd be great if the Supreme Court takes a pass, and I think the decision was written to give them that opportunity, but if they don't, I'm at the "so fucking what?" stage. I'm your contradiction, you pricks. Resolve me. I dare you. I don't care that it may be "stupid" to force the issue on a collection of virulent bigots instead of waiting for them to die off. (Given that Roberts, Thomas, and Alito are all close to my age, I don't know who'd win that one. And if waiting for bigots to die out actually worked, wouldn’t they all be dead by now? I’ve been waiting since I was about six.) I know I'm being impolitic, but it's my life and my marriage, and I’m getting old, and I hope they choke on it.

  28. Ozymandias, King of Ants Says:

    @Mrs. Chili: "I don't think that even they can come up with a legitimate legal reason to overturn the 9th Circuit."

    When the hell has that ever stopped this court?

  29. Ozymandias, King of Ants Says:

    Also, doesn't it only take four justices to grant a writ of certiorari?

  30. Bernard Says:

    a technicality is all the Far Right Supreme needs to turn down this decision, which i think is the easy way not to give the Left any grounds on how to respond. Nothing to see here, Move on, Please!!

    The Evil Republicans will figure out how to dismiss this and splatter our Rights all over the place, like they have for years now.

    The intricacies of the Evil Mind are not easily displayed but are artfully played to "show" you who's boss.

    Until a lot of old scared white folks and lots of Religious Nuts die of old age, I think this "human" right of association will be thrown down on the floor and stepped upon with such glee and delight by those on the Right. Never underestimate the Hatred and Fear of the Other. Plessy vs. Ferguson is just a foretaste of what awaits us via this Hatefilled Republican Cabal of Fuckers called Scalia, Alito, Roberts, Thomas. and of course to have Kennedy be the ONE!!. Justice? what justice, where, when did i miss it!

  31. HoosierPoli Says:

    One of the enduring mysteries of modern American politics is why DOMA hasn't been invalidated as OBVIOUS unconstitutional half-a-dozen times by now.

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  33. Matt Says:

    @xynzee: re the "powder keg" – where's the matches? I'm utterly sick of watching the teahadis prance around and pretend to be hard while threatening secession and so on and waving their phallus-substitute guns around.

    I suspect most of them would piss their pants and hide when the SHTF, so it's time to find out.

  34. bb in GA Says:

    @matt

    The false macho part of the T party has been quite minimal, but amplified to the max by the mainslimes (how many times are we gonna see that same AR on the shoulder in AZ?).

    There have been more rapes (illegal activity where someone gets hurt) during the various OWS events than there have been open carries (legal activity where no one was hurt.) at all the T party events.

    //bb