By Ann Rostow
And the Beat Goes On
At some point in every single presidential race, without exception, some commentator or candidate observes that among other issues, the campaign is also about the future of the Supreme Court. Think how many justices the next president might be able to appoint! God forbid the other side gets that power!
I know we’re just beginning to contest the 2016 election in earnest, but this time the old saw will actually have freshly honed little teeth. Scalia is 79, Ginsburg is 82, Kennedy is 78 and Breyer is 76. Think about that as we decide who will govern until January of 2021, when this foursome reaches 84, 87, 83 and 81. In my head, I hear once again the voice of Ming-Ming, the Wonder Pet duckling, who cautions: “This Is Sewious.”
Speaking of 2016, I’m a political junkie but even I find the prospect of 17 more straight months of nonstop election blather a little exhausting. Must we? And when, I wonder, will we all just give in and submit to nonstop presidential politics that ebb and flow around the actual elections, but basically just maintain a constant current. Oh, wait. We’re already there. That said, I am delighted to see that the Republicans are beginning to assemble another cartoon lineup for the primaries, despite the best intentions of certain party strategists.
Ben Carson just told a TV interviewer that the Supreme Court’s role as the interpreter of the Constitution is “something we should discuss” as a nation. Hello? This man is a candidate for President of the United States? As for Carly Fiorina, does anyone remember the demon sheep? That’s all there is to say except for the minor detail that a woman who is incapable of running a computer company cannot run the executive branch of the United States. Throw in Rand Paul, whom I think disapproves of the Civil Rights Act of 1964, Mike Huckabee, Bridgegate Christie, Oopsgate Perry and the rest of the gang, and we’re on track to make the last primary crew look sedate.
(By the way, check out a Huffpo piece by Geoffrey Stone for a nice take on the once and future Court.)
So Sue Me, Sue Me, What Can You Do Me?
I feel easily distracted this morning, incapable of resisting the click bait that runs temptingly down the side of my screen. As such, I just investigated a link for “five foods you should never eat after 45.” In a flash, the forbidden five raced past me, at which point a nutritionist started what appeared to be a very lengthy sales pitch. I tried to exit and re-enter the site, but I kept being sent to the commercial. Never again could I retrieve the five foods, which included whole wheat bread, orange juice and artificial sweeteners. Oh! Margarine was another. I just remembered! At any rate, I can’t remember the fifth and as mentioned, I only remembered number four just now. Why is this important? Because I am obsessed with getting the full list. I don’t eat margarine or whole wheat bread, and I don’t drink orange juice as a rule, so here’s my chance at last to succeed at a health program. All I have to do is give up Coke Zero and figure out bad food number five.
I’m distracted because none of the GLBT news headlines have engaged my brain for more than a few seconds. How can I rehash them for you in an entertaining manner if I can’t find a kernel of amusement or wisdom at their core? Why would you care about a subject if I do not? New Zealand gay and lesbian athletes are less likely to be out of the closet than their counterparts in Australia, Canada, the U.K. and the U.S.. Do you care? Me neither. The only New Zealand athlete I care about is Lydia Ko, who transcends sexual orientation.
I suppose we can talk about the Nebraska woman who filed a federal suit against us, all of us that is who fit under the rubric “homosexuals.” Indeed, the formal name of the suit was “Sylvia Ann Driskell v Homosexuals.”
What annoys me about this incident is the fact that a federal judge actually issued a three-page order, dismissing the case on lack of subject matter jurisdiction and other technicalities. By technicalities, I refer to the fact that Driskell has no standing to sue, that you can’t sue a generic group of people, and that Driskell failed to ask for specific relief or state any damages. In other words, some lady, calling herself “Ambassador for plaintiffs God and His son Jesus Christ,” scrawled a bunch of scripture on a few sheets of notebook paper, addressed it to the court and wound up being taken seriously by a federal judge and a bunch of news reporters. How did that happen? Why didn’t this “litigation” find its way directly to the circular file?
Big Love
So, let’s talk polygamy, shall we? You recall that in last month’s High Court arguments on marriage, Justice Alito persisted in absurd hypotheticals, including the old song and dance about why brothers and sisters or groups of people should not be allowed to marry. Attorney Mary Bonauto was obliged to parry these extra-judicial softballs like a guest on a talk show rather than a lawyer arguing before the highest court in the land.
The polygamy question is interesting, however. Why is marriage between just two people? The best answer, as Bonauto explained it, is really a logistical one. Leaving aside the abusive history of polygamy, when powerful men essentially used women and girls, it’s fairly impossible for the state to come up with rules and regulations to suit an infinite variety of legal households. It’s hard enough to govern marriage, with two adults and legal children. But when you throw in multiple mates and then imagine the partial dissolution of the family and wonder whose kids get whose inheritance and consider what happens when one wife wants to leave with one of the husbands who originally belongs with another wife…Well, you get the picture.
But my answer to the slippery slope argument has always been a little different. We are on the verge of marriage equality for same-sex couples for one reason. Same-sex couples have been living together, basically married, for years and years. Hundreds of thousands of couples. The Court is not deciding whether or not to launch an experimental new family structure. It is deciding whether or not to acknowledge the same-sex marriages that have already proliferated throughout the country.
If polygamists had also proliferated, we would be having the same conversation about them. If you looked around and saw tens of thousands of households, led by multiple unrelated adults who professed to be committed for a lifetime and all in love with each other, this country would be debating the legal future of polygamy. Likewise, if siblings all over the nation were forsaking all others and forming marriages in all but name, we might be asking why our incestuous neighbors weren’t being treated equally. But, in fact, we don’t see polygamy with the exception of a few communal households and the odd religious cult or two. We don’t see incest. We don’t see people wanting to marry pets or whatever. That’s why arguments on the slippery slope fail to gain momentum.
To admit this is sort of to admit that philosophical, legal or moral judgments are to some extent influenced by mere numbers. But I guess I’d say that when large numbers of people act in a way that suggests I’m wrong about a philosophical assumption, it’s appropriate to revisit that assumption. Ergo, I would be happy to consider the validity of polygamy if I were to witness case after case of happy polygamous families. Fortunately for those of us who are indifferent to the plight of gigantic complicated families, there’s no sign of polygamous hordes on the horizon.
While We’re Waiting…
What else is new, you ask? Well, the Eighth Circuit has decided to postpone arguments on their marriage cases, presumably in deference to the Supreme Court. The oral arguments had been scheduled May 12 on cases out of Arkansas, Missouri, South Dakota and someplace else. Oh, Nebraska. How could I forget? At any rate, it was unclear why the court was proceeding with these cases to begin with, considering the High Court will resolve the whole question in a matter of six or seven weeks. Now they’ve seen reason.
The Fifth Circuit (Texas, Louisiana, Mississippi) heard marriage arguments back in January, and I guess I thought they might weigh in on the subject by now. Since we have yet to hear a squeak out of them, I’m guessing they’re going to put their decision on hold as well. Now that I’ve put that prediction in print, you can expect a ruling from the Fifth Circuit within a few days.
Over in Alabama, where all that weirdness went on a month or so ago, litigation continues on the question of whether or not the entire state must follow a ruling from a single federal court. Again, the Supreme Court will settle the issue of marriage before the tide rolls in on this intriguing state versus federal court question. I think it’s clear that Alabama does, in fact, have to follow a decision by the Supreme Court, even if Ben Carson disagrees.
That said, does Texas have to follow the Supreme Court as well? One of our idiotic state legislators (and there are many) opined that the late June ruling on marriage won’t effect the Lone Star state since the cases in question originated elsewhere. Hmmm. Sleep through con-law class in college? Or maybe he didn’t take it. Maybe he skipped college all together.
But Texas is about to vote on a couple of antigay laws; one that lets ministers opt out of performing a same-sex ceremony, and another that says state funds can’t be used to issue or recognize marriage licenses or something like that.
Of course, ministers are already free to decline anything that they don’t like under the First Amendment, and Texas already has one of those religious freedom laws on the books as well. But, by all means, let’s pass another statute.
As for the bill that says Texas won’t spend money to register or recognize a same-sex marriage, I confess I don’t really understand that one. Do our lawmakers think that they can restore an unconstitutional marriage law to the books with a little bureaucratic red tape? Or do they simply aim to delay the onset of marriage equality in Texas with another round of litigation? Either way, as a married lesbian Texas resident, it’s infuriating.
Cruz Control
Let’s see here. Not much space left to tell you about some anti-gay guy who was just named Culture Minister in the U.K. Not enough room to talk about the gay hoteliers who “accidentally” invited Ted Cruz over for a reception and “fireside chat” at their New York apartment. When word leaked out, the ex-partners professed to be appalled to learn that the senator is actually one of the most reactionary antigay fools in Congress. Now, I guess, at least one of them is annoyed that his apology has not been enough to stem the community anger. Mati Weiderpass has just penned an op-ed in the New York Observer calling the hostile commentators “extremists.”
Hey, before I go, what’s up with the Cialis ads that point out there are moments—presumably amorous— when you don’t have time to find a bathroom—presumably to take a pill or something? I think they’re trying to promote the fact that Cialis works longer than the competition. My problem with the commercial is that most of the couples in question are all outside in public, at a football game or a fair or whatever. So they do have time on their hands, unless we’re supposed to imagine that they’re going to have sex in the bleachers or under the carousel like teenagers. Okay, I guess they could. I don’t want to be ageist. I just dislike inconsistency in television ads.
arostow@aol.com
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