Chief Justice Rejects Cuccinelli Request to Stay 4th Circuit Sodomy Ruling

 

It appears that Ken Cuccinelli - a/k/a "Crazy Cuccinelli" or "Kookinelli" - may be headed towards another defeat at the U.S. Supreme Court (he's lost every case he's brought so far).  This time, Kookinelli's delusional quest and waste of Virginia tax dollars involves his bizarre effort to save Virginia's unconstitutional "crimes against nature" or "sodomy statute."  After a loss at the U.S. District Court and a double loss at the U.S. Court of Appeals for the 4th Circuit, Cuccinelli appealed his case to the U.S. Supreme Court and asked that the 4th Circuit ruling be stayed (i.e., suspended from effectiveness pending final action by the Supreme Court).  Yesterday, Chief Justice John Roberts added to Cuccinelli's losing average by saying "No" to the requested stay.  Here are details from the Washington Post on the latest bitch lap delivered to Cuccinelli:

Virginia’s attorney general has lost his bid to delay a lower court ruling that struck down the state’s anti-sodomy law while the U.S. Supreme Court considers whether to hear his appeal.

Chief Justice John Roberts on Friday denied the request for a stay from Attorney General Ken Cuccinelli.

In March, a divided three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond declared Virginia’s law against oral and anal sex unconstitutional.

Cuccinelli appealed the ruling in June, and later asked the justices to issue the stay.
His request was opposed by attorneys for a man who was convicted under Virginia’s so-called crimes against nature law.

In his appeal, Cuccinelli argues that the Texas ruling did not apply to sex acts between adults and minors. MacDonald’s lawyers dispute that analysis.

The federal appeals court said that while the Supreme Court did not expressly carve out an exception for minors, it left open the possibility of state legislatures doing so.

As noted in previous posts, it was Cuccinelli himself who led the charge to block changes to Virginia's statute that might have addressed the supposed problem that Cuccinelli now complains of.   Denial of the stay is a possible sign that the Supreme Court will refuse to hear the appeal when it takes formal action.

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Antonin Scalia Reaches New Levels of Insanity

It would seem that it is time to not only have Antoin Scalia removed from the U. S. Supreme Court but also time that the man checked into a mental institution.  His bizarre fantasy world where white is black and up is down now includes blaming liberalism for Nazi Germany and the Holocaust.  It was the conservative elements in Germany that bought into the Nazi regime and slowly but steadily liberal voices were silenced.  Scalia also ignores that European history confirms that antisemitism had its strongest roots among conservative regimes - e.g., Tsarist Russia. But then again, reality means nothing to Scalia.  Here are highlights from Talking Points Memo:

With his own claims to originalism fading fast, Scalia suggests liberal judicial activism, practiced by some of colleagues on the Court, is part of what brought about the Holocaust in Nazi Germany. The speech was an address to the Utah State Bar Association.

From the Aspen Times …

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.

 The man is a menace to society.

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Antonin Scalia: The Supreme Court Mullah

As we await the rulings today in Hollingsworth v. Perry and United States v. Windsor it's worthwhile to look at a piece in Slate that examines the bigotry of Justice Antonin Scalia who, in my opinion, becomes more insane and unfit for a position on the Court with each passing day.  The man cares nothing for the rights and lives of others - as is the norm for the Christofascists - and would seemingly be better placed among the mullahs in Tehran or conservative regions of Pakistan.  Here are some article highlights that follow up on Scalia's rant on "morality" last week in North Carolina:

In a speech last week titled “Mullahs of the West: Judges as Moral Arbiters,” Justice Antonin Scalia told the North Carolina Bar Association that the court has no place acting as a “judge moralist” in issues better left to the people. Since judges aren’t qualified—or constitutionally authorized—to set moral standards, he argued, the people should decide what’s morally acceptable.

But does Scalia, whose quarter-century on the bench has marked him as the court’s moral scold for his finger-wagging views on social issues, have a coherent understanding of what it means to say something is or isn’t moral, and of morality’s proper role in the law?

Scalia would have you believe it’s liberal, pro-gay sympathizers who are imposing their own brand of moral laxity on the nation, and unconstitutionally using the courts to do it. His angry dissent in the 2003 Lawrence v. Texas case ending sodomy bans—decided 10 years ago this week—blasted the court for embracing “a law-profession culture that has largely signed on to the so-called homosexual agenda [which is] directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

“Countless judicial decisions and legislative enactments,” he wrote, “have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.”

Yet as Sandra Day O’Connor pointed out in her concurring opinion in Lawrence, that’s not actually true. At least when you’re singling out a group for separate treatment. “We have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”

He defends the people’s right to legislate their belief that some forms of sex are “immoral and unacceptable,” to oppose, by law, “a lifestyle that they believe to be immoral and destructive,” and to pass public indecency statutes to protect “order and morality.”

If what’s really at issue are acts that threaten safety, health, and order, why do people like Scalia keep insisting that mere moral disapproval, rather than preventing harm, should be a constitutionally legitimate basis to limit people’s rights?  The entire anti-gay movement has gotten this memo. Which is why arguments that gay people are sick, disgusting and all-around morally bad have yielded, since the 1990s, to arguments alleging that gays threaten to cause concrete harm to American families and institutions.

Scalia seems to reduce morality to feelings and tastes alone. He wants judges to get out of the way and respect that “people may feel that their disapprobation of homosexual conduct is strong enough” to pass laws against them. For him, it was the very “impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses” that allowed the court to ban sodomy prior to Lawrence. But homosexuality is distinguishable from other morals “offenses.” Assisted suicide, incest, adultery, pornography—all these arguably cause some form of harm to living creatures, while two women loving each other just doesn’t.

What we should no longer be able to get away with in the 21^st century is calling something immoral just because we don’t like it. Genuine moral judgment is not reducible to whatever people feel, what they like or don’t like. (Isn’t that what lax liberals are alleged to believe?) Morality is not just whatever views a majority has long held, and it’s not simply what you learned on your mother’s knee or whatever it says in your faith’s scripture. Moral belief is a grounded judgment about what harms or helps living things. Yet somehow, homosexuality’s become just about the only thing left that people get to call immoral without every explaining why.

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Cuccinelli Asks Supreme Court to Uphold Virginia's Sodomy Statute

Ken Cuccinelli's gubernatorial campaign claims that Cuccinelli, a/k/a Kookinelli, is focused on jobs and issues that matter to most Virginians.  You'd never know that based on his request filed today for the U. S. Supreme Court which struck down for a second time recently by the U.S. Court of Appeals for the 4th Circuit, the most conservative Circuit Court of Appeals in America (it was struck down the first time by the U.S. Supreme Court's ruling in Lawrence v. Texas in 2003 that ruled a similar Texas statute to be unconstitutional).  

In his ludicrous explanation for his appeal, Kookinelli claims that the sodomy statute is key to prosecuting sex crimes even though numerous other statutes give prosecutors plenty of bases for prosecuting wrongdoers.  No what's special about the sodomy statute is that it criminalizes any form of sex that isn't engaged in via the so-called missionary position.  It is part and parcel with the Christofascist agenda that sex should never be enjoyable and certainly should never depart from their rigid - might we also say frigid if we think of sodomy statute supporter, Victoria Cobb, president of The Family Foundation? - views that sex is only for procreation and one had better not like it.  The other reason Kookinelli lusts to keep the sodomy statute on the books is that it imposes far higher penalties on "deviant" sex crimes than the rest of the panoply of laws available to prosecutors.  Here are details from the Virginian Pilot on Kookinelli's appeal (which will no doubt send the far right crowd into near orgasms since they can't have them during sex):

Attorney General Kenneth Cuccinelli on Tuesday asked the U.S. Supreme Court to uphold Virginia's anti-sodomy law, arguing that a lower court misinterpreted the scope of the justices' 2003 decision invalidating a similar law in Texas.

In a 2-1 decision in March, a panel of the 4th U.S. Circuit Court of Appeals declared that Virginia's law against oral and anal sex is unconstitutional. [The 4th Circuit also refused Kookinelli's request for a rehearing en banc]

Virginia's so-called "crimes against nature" law was the basis for a 47-year-old man's conviction of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. In the appeal, Cuccinelli claims the Supreme Court's Lawrence v. Texas decision applied only to sex acts involving consenting adults, not those between an adult and a minor.

Claire Guthrie Gastanaga, executive director of the ACLU of Virginia, said she was disappointed that Cuccinelli chose to appeal the ruling.  "I think that's a waste of the state's resources," she said. "By appealing, he's trying to breathe life into a law that is clearly unconstitutional."

The appeals court's ruling came in the case of William Scott MacDonald, who was convicted of violating a Virginia law making it a felony for any adult to order a person under age 18 to commit a felony. MacDonald claimed his conviction for that offense was improper because the underlying felony was based on an unconstitutional law. The appeals court agreed.

Gastanaga said that rather than appeal the 4th Circuit's decision, Cuccinelli should work with the General Assembly to draft a constitutional law protecting older minors.

The decision to appeal is certain to provide campaign fodder for Democrats who already have accused Cuccinelli and his GOP ticket mates of pursuing an anti-gay, socially divisive agenda.

And lest we forget how virulently anti-gay Kookinelli is (despite persistent rumors that, gasp, he may have violated the sodomy statute himself in the past) , the Virginian Pilot also reports on Cuccinelli's brief to the U.S. Supreme Court in the gay marriage case to be decided tomorrow.  Here are story excerpts:

Cuccinelli led a group of 19 Republican attorneys general in filing a 55-page brief with the court in late January opposing legal recognition of gay marriage. In one passage, their brief seeks to undermine the notion that if same-sex couples can be parents, they should also be legally allowed to get married:

"Responsible parenting is not a justification for same-sex couple marriage, as distinguished from recognition of any other human relationships. It is instead a rationale for eliminating marriage as government recognition of a limited set of relationships. Once the natural limits that inhere in the relationship between a man and a women can no longer sustain the definition of marriage, the conclusion that follows is that any group of adults would have an equal claim to marriage."

Kookinelli is a flaming asshole and, based on the rumors that come my way, a hypocrite.  My offer stands: If someone will come forward with reasonable proof that Kookinelli is another Ed Schrock or Larry Craig and sign a sworn affidavit affirming the information, I will happily do all I can to take his sorry ass down.  If you don't believe me, ask Ed Schrock or former "ex-gay" poster boy Michael Johnston, if you can find either of them.   All it will take is believable evidence and a detailed sworn affidavit.

 

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Wall Street Sees Opportunity in Demise of DOMA

Hopefully, the U.S. Supreme Court will release it opinion later today striking down DOMA, the Defense of Marriage Act, which codified Christianist anti-gay bigotry into the federal law.   Even if the Court demonstrates a lack of spine and courage and falls to strike down bans on gay marriage nationally, should DOMA fall much will change in the legal landscape for same sex couples, albeit the impact will vary from gay friendly to anti-gay states like Virginia.  Wall Street and financial advising firms somewhat belatedly are recognizing that there is money to be made in courting same sex couples.  Some, like myself, have been working with gay and lesbian couples for a number of years on estate planning issues.  A piece in Politico looks at this recognition of the LGBT market.  Here are excerpts:

The Supreme Court’s long-anticipated ruling on the Defense of Marriage Act will provide some clarity about a fast-growing practice for banks: financial planning for same-sex couples.

The country’s highest court is expected to hand down a landmark opinion as early as Monday on a section of the law that denies married same-sex couples the same federal rights and benefits as married heterosexual couples.

“In terms of financial planning and advisory to the [lesbian, gay, bisexual or transgender] community, it does muddy the waters,” said Eric Berger, a relationship manager and founder of the LGBT Private Banking Initiative at Credit Suisse — one of many banks that began offering specialized financial planning services for the LGBT community in recent years. “The uncertainty causes a bit of paralysis from advisers because on the legal side … basically any planning that you do now, you may have to redo.”

As a number of states across the country have legalized gay marriage, Wall Street has emerged as an ally for gay rights advocates.

Prominent banking executives, including Goldman Sachs CEO Lloyd Blankfein, have spoken out in favor of same-sex marriage and an LGBT-friendly work environment. Large banks — including Goldman, Citigroup and Morgan Stanley — were also among the hundreds of companies that filed a brief earlier this year urging the Supreme Court to overturn DOMA.

And as momentum for gay marriage has gained traction, banks have seized on the changing landscape to attract high net-worth same-sex couples with custom-made financial planning services.

Scott Squillace, the founder of the law firm Squillace & Associates in Boston, which specializes in estate planning for same-sex couples, said he has noticed a marked change among banks across the country over the past decade.  “All of the banks large and small have woken up to the fact that this is a terrific demographic to market to,” said Squillace

A division of Bank of America’s Global Wealth and Investment Management group provides educational tools and materials for LGBT clients on issues ranging from estate, financial and retirement planning. 

Morgan Stanley is also ramping up its services for same-sex couples. It currently offers financial planning seminars to both advisers and clients, and plans to enhance its financial planning desktop software to accommodate wealth management for domestic partners by the end of the summer.

[I]f the Supreme Court overturns Section 3 of DOMA, the decision will present many couples with an important financial decision of their own: to wed or not to wed. From a legal and tax perspective, there is a long checklist of pros and cons.

 For example, there are no gift or estate taxes between spouses, so married couples can give each other an unlimited amount of money while alive or as part of their estate without having to pay Uncle Sam.

Not all of the benefits are necessarily positive. Low-income seniors who are eligible for Medicaid could receive federal assistance for nursing home care, but when considering eligibility, the federal government looks at a married couple’s combined income and assets, making it harder for an individual to qualify.

If the Supreme Court rules DOMA’s Section 3 is unconstitutional, same-sex couples would be poised to eventually receive the same federal marital benefits as opposite-sex couples in states where gay marriage is legal.

I will be speaking at a seminar hosted by Wells Fargo Financial Advisors on July 10th which, you guessed it, targets the LGBT market.

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Where Will Gay Rights Be After SCOTUS Rules?

Many are waiting with apprehension this morning since today or Monday will likely be when the U. S. Supreme Court hands down its rulings in Hollingsworth v. Perry, the Proposition 8 case, and United States v. Windsor, the DOMA case.   The speculation is that DOMA will be ruled unconstitutional and for gays in states where gay marriage is legal, a host of new legal rights will become available.  The Proposition 8 case is another matter and few seem to anticipate a broad ruling that would strike down bans on gay marriage nationwide.  So where does that leave those of us living in virulently anti-gay states like Virginia?  Mostly still totally screwed and second, third or even fourth class citizens.  But, if DOMA does fall, there will be some possible rights flowing to us if we marry in states where gay marriage is legal.  As noted in prior posts, we will face very complicated and inconsistent legal rights and challenges.  A narrow ruling on Prop 8 and a striking down of DOMA will no doubt unleash a further host of law suits.  Here are highlights of some further analysis from Towleroad.

Normally, marriage law is pretty simple: For 99 percent of heterosexual couples, the hardest thing about marrying in one state and moving to another state is packing the fine china. Sure, there are some states (New York) that allow first cousins to marry and some states (West Virginia) that do not, but for the most part, when a man marries a woman, they are married in all legal respects whether they live on the 65th floor in an Upper West Side hi-rise or in a ranch house in Oklahoma. 

The end of DOMA doubles down the complexity faced by legally married same-sex couples. What is the governing law for marriages for federal law: the place of celebration or the place of domicile? What if the choice of law is different from different aspects of federal law? What happens when a legally married couple moves to a state that feels that their marriage violates public policy? What of gay couples that do not have the option of marrying and are in registered domestic partnerships or civil unions that provide all the benefits of marriage?

[I]n a world without DOMA, which makes the choice of law question moot, what will the federal government do? The general rule is the marriages are recognized in the state of celebration, or the state the couple signed the marriage license, even if they reside somewhere else.

Some people argue that all states should recognize same-sex marriages performed in other states because the Constitution, specifically the Full Faith and Credit Clause, requires the states to recognize the "the public acts, records, and judicial proceedings, of every other state." But a marriage license is not a judicial proceeding and although it could be considered a "record," courts have generally not required other states to give binding recognition under the Full Faith and Credit Clause to similar documents, such as a pharmacist's, dentist's, or a lawyer's license.

That means that the Constitution isn't going to be much help coming up with a clear choice of law rule in a post-DOMA world. We could rely on the common law default rule that marriages are recognized by the federal government based on the laws of the state of celebration. But the common law rule has exceptions -- big ones -- that make life impossibly difficult for gay couples to move from one state to another when those state gay marriage laws differ. For some moves -- say, from New York to New Mexico -- there is no problem because whereas New Mexico may not be a freedom to marry state, it will recognize out of state gay marriages. But for other moves -- say, from Massachusetts to Utah -- the public policy exception to out-of-state marriage recognition takes Utah off the map as a viable destination for gay couples.

This raises questions of social justice and fairness, but also constitutional rights. You have a right to move, and states that ban gay marriage and refuse to recognize out-of-state marriages put an effective burden on gay would-be new residents. In Saenz v. Roe (1999), for example, the Supreme Court held, in part, that those who leave one state and become permanent residents of another state have a right to be treated equally to native born citizens of that state. That holding is not cabined by a mover's sexual orientation: a gay person isn't entitled to be treated like any other gay person in his new state, but rather he is entitled to treated equally to any other person in his new state. That could apply to marriage discrimination, as well.

Of course, Congress could step in and solve the complexity problem. The Respect for Marriage Act (ROMA), for example, would codify the following rule:

For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

Short of this kind of Congressional action -- which, by the way, is unlikely, given the makeup of the House and the long decades that have passed without Congress taking any action to mop up the messy patchwork of choice of law rules when it comes to marriage -- the post-DOMA world will be a tangled web of common law rules that will be subject to future litigation. There are no simple answers to the next questions. The IRS may interpret the tax and bankruptcy codes to define marriage based on state of celebration, but that rule can be challenged. Immigration authorities may interpret the rule differently, based on contradictory case law coming out of the spousal visa context, though, as attorney Lavi Soloway has argued, the celebration rule is the stronger argument.

Yes, it will be very complicated for many of us.   All so that the Christofascists can feel morally superior and inflict their anti-gay animus on as many of us as possible.  So much for religious freedom and the "liberty" that America pretends to offer to all.

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Even if DOMA Falls, Many Gay Couples Will Remain Second Class Citizens

With more and more people waiting for the Supreme Court's rulings in Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (the DOMA case), increasing analysis indicates that absent a nationwide ruling for gay marriage, a striking down of DOMA alone will leave many same sex couples screwed.  We will remain second class citizens unless we emigrate from our home states to states that recognize full gay marriage.  That, of course, is precisely the goal of hate groups like Family Research Council and the National Organization for Marriage which seek to keep discrimination and mistreatment of LGBT citizens alive and well as long as possible.  They don't give a damn about "protecting marriage."  No, it's all about keeping gays inferior under the law.  A piece in the New York Times reviews the limited impact that the striking down of DOMA will have for most of us at least unless and until federal regulations and in some cases legislation is rewritten.  Here are highlights:

A Supreme Court ruling this month that could overturn the ban on federal benefits for same-sex couples is presenting the Obama administration with a series of complicated and politically sensitive decisions: how aggressively to overhaul references to marriage throughout the many volumes that lay out the laws of the United States.

The decisions could affect Social Security checks, immigration laws and military benefits for same-sex couples, among other issues, with the outcomes based on whether the couples live in a state that allows them to marry. 

Gay rights advocates, aware that a Supreme Court ruling that overturns the 1996 Defense of Marriage Act would be the beginning of their push to have the federal government recognize same-sex marriage, are urging White House officials to plan to modify hundreds of mentions of marriage throughout federal statutes and regulations.

If the justices do strike it down, they will sweep aside a law that has for years prohibited gay couples from receiving a vast array of federal benefits that married couples take for granted. But whether gay couples actually get those benefits would depend on where they live — and how vigorously President Obama seeks to change the legal language that determines whether a couple is married in the eyes of the federal government. 

For Mr. Obama, who appears eager to have his legacy defined in part by the advancement of civil rights for gay Americans, his administration’s actions after the ruling may be as important as the ruling itself.

Activists, however, are warning gay couples not to expect that federal benefits would arrive immediately, because government agencies vary widely in how they determine whether a couple is legally married. 

Some federal agencies, like the I.R.S. and the Social Security Administration, make that determination by looking to the state where a couple lives. Even with the 1996 law overturned, those agencies would deny benefits to gay couples who live in one of the 38 states that do not allow same-sex marriage.

Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now. The same-sex spouse of a service member would get health care benefits no matter where the couple lives, as long as the two married in one of the 12 states where same-sex marriage is legal. 

“Without sweeping decisions from the court, we’ll continue to have a patchwork across the country that denies all families equal protection,” Mr. Sainz said. “We are going to fight for full equality in all 50 states, including marriage.” 

It's not encouraging.  Those of us in Virginia - one of the most anti-gay states in America - will still be largely screwed and not equal citizens.  And should the GOP statewide ticket of gay haters be elected in November, an already bad situation will become far worse.  As I've said before, if family circumstances were different, I'd leave Virginia in a hear beat.

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