You probably expected a review of last night’s Veep debate today. Sorry that will have to wait for another day and then possibly not get an entire article dedicated to it. Here is my prediction: Mike Pence will again prove that he is one of the best straight faced liars in American political history.
Now to the topic of the day, a lot of things are effectively on the ballot this year and among them is same sex civil marriage which the 2015 Supreme Court decision in Obergefell v Hodges confirmed. Let’s explore.
Obergefell was a 5-4 decision with Stephen Breyer, Elaina Kagan, Anthony Kennedy, Ruth Bader Ginsburg, and Sonia Sotomayor in the majority. The dissenters were Chief Justice John Roberts joined by Samuel Alito, Antonin Scalia and Clarence Thomas. That “lineup” has changed.
A lot of voters are concerned about this election and the pending Supreme Court nominee Amy Coney Barrett. The public has realized that many issues are on the table if she or someone like her is seated. You can make an argument for several of them being the most important. I will not get into a ranking game; I feel all are important with several crucial. Today I want to concentrate on same sex civil marriage.
One argument downplaying this issue is: “I’m not gay so why should I care? It doesn’t affect me.”
Same sex civil marriage – or more specifically its denial adversely affects everyone. You may not be gay but I will guarantee you that someone in your extended family or close circle of friends is.
Same sex civil marriage is good for the economy. States and cities compete for employers/jobs. If you wanted to recruit the best talent regardless of factors like race, gender or sexual preference would you locate in an area that discriminated against members of the LGBTQ community? Of course not! A member of that community may be the best candidate for your job opening and why should you settle for second best? Let’s expand that scenario just a bit, some companies consider more than one country to locate in. Why would they sacrifice the talent that might make the next big discovery?
If you doubt this issue comes into play in business just ask North Carolina what the “Bathroom Bill” cost it.
It is the general consensus that communities are strongest when the majority of adults in them are in married relationships. Unless you are so backward that you believe in praying away the gay or some other right wing mythology same sex couples will cohabitate and some of them will live in your community. You’re “stuck’ with the two gay guys in the house down the street. Wouldn’t it be better for the community to have cohabitating adults in the more committed and stable relationship of marriage?
This will be my weakest argument (only because the right wing really doesn’t have any morals) to the skeptics among my readers; but same sex civil marriage is simply morally correct. Although not a Christian I believe in and lead my life by the Christian principle that we are all equal at our core (All God’s children). If I can be married to a woman, why can’t my mythical gay male neighbor marry another man? Love and commitment is what counts; not which bathroom you go to at a ballpark (when we can safely go back to a ballpark that is).
Now back to the lineup. Justices Ginsburg and Scalia have died and Justice Kennedy has retired. Scalia was replaced by Neil Gorsuch (right winger for right winger). Kennedy was a moderate and has been replaced by the far right wing Brett Kavanaugh. Currently Donald Trump and Mitch McConnell are trying to replace the progressive Ginsburg with extreme right winger Barrett.
We have three scenarios and history to extrapolate from. The common ground in all is that on Monday Alito and Thomas wrote that they are willing to overturn Obergefell. There is every reason to assume Gorsuch and Kavanaugh will join them. It is equally safe to assume that Breyer, Kagan and Sotomayor will vote the same way they did in 2015 if a challenge to Obergefell makes it to the Court.
Scenario I: Trump and McConnell are successful in naming Barrett or someone equally extreme to the Court. There are now five solid votes to overturn. Game over!
Scenario II: While this is the least likely scenario let’s assume that the Court stays at eight when it hears a challenge to Obergefell. (I content this is why the Court declined to hear Davis v Ermold. It was in that statement that Alito and Thomas – who both voted not to hear the case – made their declarations.) Seven votes are obvious. I contend Roberts is the “surprise”. Based on past performance and the legacy concern that Chief Justices often have I feel Roberts is likely to change sides and vote to sustain Obergefell. In my opinion Roberts would cite Stare Decisis and say he doesn’t feel the Court should overturn a previous ruling in short order, even though he disagrees with said ruling. The vote would be 4-4 and Obergefell would stand.
Scenario III: Trump doesn’t get a third nominee confirmed, Biden wins the election and the Democrats take control of the Senate. Biden’s progressive nominee is confirmed. The challenge is defeated 5-4.
With the rejection of Davis v Ermold a challenge is not currently on the Court’s docket and the right wing justices appear to have no appetite to challenge Obergefell until they are certain they have the votes to overturn it. A lot of my optimism depends on John Roberts but remember he has a track record of siding with progressive precedent on social issues. (Voting right and business greed are different matters).
The way I see it you can either put all your stock in luck or you can get out and do something about it by voting. It may not be in the print but Obergefell is very much on the 2020 ballot!
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