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Alabama updates 3/23

LGBT Legal Cases Marriage equality Marriage Equality Trials

Alabama state seal– In Strawser, the potential class-action lawsuit challenging Alabama’s same-sex marriage ban, the state’s attorney general has filed his opposition to class certification. He argues that all probate judges in the state should be allowed to respond, and that the plaintiffs don’t meet the requirements for class certification because they can’t prove how many same-sex couples in Alabama want to get married, among other things. The AG argues against granting a preliminary injunction against the ban, arguing that the Supreme Court will resolve the issue ultimately, and suggesting that the probate judges would be caught between state and federal law. The same-sex couples are expected to reply on Wednesday.

– In Hedgepeth, the case that was filed in Mobile County when the probate office refused to open, Governor Bentley has asked the court to consider his motion to dismiss as unopposed, because there was no response filed. The plaintiffs are ordered to respond by April 9.

– The Alabama Supreme Court has denied/ the request by Montgomery County’s probate judge to change their order forbidding probate judges from issuing marriage licenses to same-sex couples so that once the US Supreme Court issues its ruling, he can begin issuing the licenses.

Thanks to Equality Case Files for these filings

119 Comments

  • 1. Mike_Baltimore  |  March 23, 2015 at 11:33 am

    Article VI, clause 2, of the US Constitution says:
    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    I think that clause clearly and succinctly answers the AGs comment about which laws the probate judges need to follow.

  • 2. guitaristbl  |  March 23, 2015 at 11:39 am

    So basically the Alabama "Supreme Court" has indicated it will continue engaging to judicial activism against the law even after SCOTUS rules ?

  • 3. sfbob  |  March 23, 2015 at 12:42 pm

    Certainly sounds that way to me.

  • 4. guitaristbl  |  March 23, 2015 at 12:43 pm

    Btw off topic but what a present would be to any democratic candidate if Ted Cruz wins the GOP primaries and becomes the presidential candidate for GOP.
    He has just announced his candidacy and already said he would "uphold the sanctity of marriage."

    Please please please GOP base vote for him !

  • 5. Rik_SD  |  March 23, 2015 at 1:50 pm

    I thought the same of Sarah Palin, but then I thought maybe we should be careful what we wish for. It is unlikely they could win a general election, but unlikely does not mean impossible

  • 6. Mike_Baltimore  |  March 23, 2015 at 1:52 pm

    http://www.advocate.com/politics/politicians/2015

    For a Constitutional Amendment to become effective, let's go to the Constitution (Article V).

    In short, approval must be by 2/3rds of EACH chamber, then submitted for approval by 3/4ths the states (legislatively or by convention, as specified by Congress). It has been the practice recently for a time limit (usually seven years) for approval by the states to also be included in the proposed amendment.

    I don't see such an amendment as Cruz proposes even making it out of Congress. Congress should fairly easily get a majority in each chamber this Congress, but 2/3rds?

  • 7. DeadHead  |  March 23, 2015 at 2:09 pm

    Cruz is the poster boy for Evangelicals, Dominionists and the TeaBaggers, their power combined should not be under estimated. The GOP will continue voter suppression efforts and in the red states they have talked about splitting the electoral votes in 2016.

  • 8. aiislander  |  March 23, 2015 at 2:18 pm

    Frankly, I don't even think he could get a simple majority for a constitutional amendment. As crazy as so many GOP's are, many of them surely would think twice before actually trying to write discrimination into the Constitution.

  • 9. StraightDave  |  March 23, 2015 at 2:24 pm

    But doesn't that electoral vote split help the Dem's steal a red state vote here and there (like in NE). The only GOP benefit would come in the big blue states like NY and CA, which would never agree to split their votes. It might make more sense in a purple state with a GOP legislative majority. NC comes to mind, which Obama won twice.

  • 10. jpmassar  |  March 23, 2015 at 2:25 pm

    OT: Indiana "religious freedom" bill has passed both houses.


    (Reuters) – A controversial Indiana bill that could protect business owners who don't want to provide services for same-sex couples moved closer to law on Monday, after passage by the state's House.

    Senate Bill 101, known as the "Religious Freedom Restoration Act," was approved by the Republican-controlled House by 63-31. A version was previously passed by the Republican-controlled Senate, and Republican Governor Mike Pence has indicated support for it.

    http://kfgo.com/news/articles/2015/mar/23/indiana

  • 11. Mike_Baltimore  |  March 23, 2015 at 2:30 pm

    That is why I didn't state that Crongress WILL easily get a majority in each chamber, but I stated SHOULD be able to get a majority. The GOTP does have a majority in both chambers, and thus controls the scheduling (or not) of votes.

  • 12. wes228  |  March 23, 2015 at 2:30 pm

    Keep in mind that the next President will most likely have the opportunity to fill several Supreme Court seats, and our win this June is looking like a 5-4 decision. A shift in ideology in the wrong direction might see our victory overturned.

    I'd like to think that if one of the "Windsor 5" were replaced in favor of someone more conservative, Justice Roberts, while voting against marriage equality originally, would not vote to overturn it. But if more than one of the Windsor 5 is replaced with a conservative…all bets are off.

  • 13. wes228  |  March 23, 2015 at 2:32 pm

    The GOP's proposal to split electoral votes is never based on proportionality (e.g. Democrat wins 47% of the vote, so he gets 47% of the state's electoral votes). The policy is: statewide winner gets 2 electoral votes, then the winner in each congressional district gets 1 electoral vote.

    The problem is that 1) the congressional districts right now are heavily gerrymandered in favor of the Republicans and 2) the Republicans are only pushing for these measures in blue/purple states, not solid red states. The Democrats are (wisely) not pushing for these measures anywhere.

  • 14. DeadHead  |  March 23, 2015 at 2:37 pm

    In an article by Jim Geraghty of National Review, a leading opinion-shaper for conservatives, floated moving forward with the plan in several states – Michigan, Ohio, Wisconsin, Florida, and Nevada – where Republicans have control. Doing so would make it “nearly impossible for the Democratic nominee to win,” Geraghty wrote. http://www.nationalreview.com/campaign-spot/39228

    Here’s how the scheme would work: Republican-controlled states that have lately gone blue in presidential elections would pass legislation that changes the way the state divvies up its electoral college votes. Instead of all going to the winner of the popular vote, they’d instead be allocated based on the winner of each congressional district, in most versions of the plan. Or, they could be split up in proportion to the popular vote in the state—so if a candidate gets 48% of the vote, he gets 48% of the electoral votes. http://www.msnbc.com/msnbc/gop-may-revive-plan-ri

  • 15. Zack12  |  March 23, 2015 at 2:37 pm

    If people want to know what the stakes in the next election are, go back to 1991.
    That is when Thurgood Marshall, a civil rights hero was replaced by Clarence Thomas, who is seeking to undo everything Marshall fought for and is more of a conservative hack then even Scalia is.
    Do you want to see the same thing happen with Ginsburg and Breyer or see Kennedy be replaced by someone even worse then him?
    The future of SCOTUS is at stake, and so is our future along with so many others in this country.

  • 16. hopalongcassidy  |  March 23, 2015 at 3:07 pm

    Not to be a Pollyanna but I refuse to believe any future SCourt would reverse an equality decision that might/should come down this June*. It would open a can of worms the nation couldn't survive, IMO.

    * although I still have some vague trepidations about how the court could possibly rule without ruling this summer. The fat lady is just now starting to gargle.

  • 17. DACiowan  |  March 23, 2015 at 3:19 pm

    As an example of how bad the problem is, Ohio and Pennsylvania both voted about 53-47 for Obama, but their House districts were a combined 25 to 9 Republican!

  • 18. RemC_Chicago  |  March 23, 2015 at 3:59 pm

    I take back everything I sa about the South. Idaho and Indiana have proven how myopic was my point of view.

  • 19. Zack12  |  March 23, 2015 at 4:18 pm

    Virtually any place that is controlled by Republicans will see crap like this coming up once we get marriage equality.
    Heck, even in your state of Illinois, there are bigoted Republicans and Blue Dog Democrats who will gladly try and push crap like this even though it will have no chance of passing.

  • 20. Zack12  |  March 23, 2015 at 4:19 pm

    http://joemygod.blogspot.com/2015/03/puerto-rico-
    The fight in Puerto Rico for equality isn't over, not by a long shot.

  • 21. Steve84  |  March 23, 2015 at 4:33 pm

    Proportional representation is really the way to go. But it needs to be like that everything. Not different from state to state.

  • 22. Zack12  |  March 23, 2015 at 4:43 pm

    On a different note, Wisconsin's harsh voter id law was upheld.
    I sadly fear that will allow Walker to win Wisconsin next year and allow Ron Johnson to win a second senate term.
    Once again, Republicans blocking Obama from making nominations on the circuit courts made all the difference.
    If Obama's nominee to the 7th had been allowed to get through, we likely would have seen the law struck down.
    As it stands now, that empty slot on the court has stood for more then five years.
    To me, that will be one of the greatest failures of Obama's presidency.
    The nuclear option was done too little too late in getting judges through and allowing the absurd blue slip policy to stay in place was another mistake.
    Democrats had a chance to fix the judiciary and although they had some success in getting some liberal judges on the courts, it is no where near enough what was needed IMO.
    Sad thing is, religious freedom laws are going to end up in some of these circuits and Obama and the Democrat's failures to shape the courts in some cases ensures we will lose in the future.

  • 23. weaverbear  |  March 23, 2015 at 4:47 pm

    Elections matter, plain and simple. Elections matter big time. None of us can afford to stay home on election day.

    I have often wondered why so many people choose to support the Republicans, against their own interests, but then when you look at how the districts were drawn by the Republicans in power in 2010-11 in so many states, concentrating Democratic votes into gerrymandered districts at both the state and federal levels, it isn't surprising to see how many districts wind up swinging to the 'red' side, even though there are a surplus of people who've registered as Democrat across those states.

    2010 was a disastrous year for the Dems; a midterm election timed for a census year, leaving Republicans in key positions of control in redrawing districts across much of this country and putting a mess of states with larger 'blue' registrants drawn in a way they cannot exercise their power in district elections outside of urban Democratic strongholds. Think Pennsylvania, Ohio, Michigan, Wisconsin, and Virgina, for a start. What's the story today in Virginia? All 5 state wide offices (Gov, Lt Gov, Atty Gen, and both US Senators) are in Democratic hands, but the state legislature is controlled by the Republicans.

    The Republicans in power know this. It was a major strategy to keep themselves in power. Is there any state where they're not currently in power, that's trying to limit the franchise with new voter ID bills? Not that I'm aware of.

    No – elections matter. God forbid Ginsburg or Breyer have to be replaced before Democrats win back the Senate. God forbid we have another Alito, or Scalia to deal with, taking this court and this nation a step further to the right. Citizens United and the gutting of the Voting Rights Act will be just the beginning.

  • 24. F_Young  |  March 23, 2015 at 5:05 pm

    hopalongcassidy: "Not to be a Pollyanna but I refuse to believe any future SCourt would reverse an equality decision that might/should come down this June*."

    You're probably right about marriage equality in June not being later overturned by SCOTUS, at least officially, because of the havoc it would create with on and off-again marriages.

    But the real concern is about neo-Jim-Crow ("religious freedom") laws being upheld in the future that effectively nullify marriage equality by legalizing discrimination against same-sex couples wherever anti-gay Republicans are in control (either as a result of anti-gay popular opinion, e.g. in Deep South states, or due to gerrymandering and voter suppression anywhere that allow them to stay in power despite popular opinion).

    The SCOTUS decision in June is the end of the beginning of the marriage equality war, not the beginning of the end.

  • 25. Zack12  |  March 23, 2015 at 5:11 pm

    Sad to say but Republicans had a plan for 2010 and executed it perfectly.
    They knew elections at local and state levels matter, because that is where laws can be made and where they could ensure they have majorties in some states for years or decades to come.
    Howard Dean tried to warn Democrats about this and was shoved out the door for his efforts.
    Now we see him being proven right but too little too late.

  • 26. VIRick  |  March 23, 2015 at 5:13 pm

    ¡Ella parece ser llena de mierda!

    Maria Milagros Charbonier is a nut-job. Her political party advocates for statehood. And guess what the USA will soon have, nationwide, with or without Puerto Rico as a state? She won't get anywhere with this.

  • 27. Raga  |  March 23, 2015 at 5:17 pm

    From Equality Case Files: Hathcote v. Green (Couple seeking a marriage license in Blount County, Alabama): Hearing on motion for preliminary injunction set for 10:30 a.m. on March 26 at the Hugo L Black US Courthouse, Birmingham, AL. This was the federal case out of the Northern District where, a month after the case was filed, Judge Blackburn suddenly recused herself without reason last week. Looks like the new judge (Judge Acker) wants to move things along quickly. http://www.scribd.com/doc/259722307/2-15-cv-00273

  • 28. Wolf of Raging Fires  |  March 23, 2015 at 5:51 pm

    I'm all about proportional representation. I'd take a Parliament over a Congress any day.

  • 29. Wolf of Raging Fires  |  March 23, 2015 at 5:53 pm

    I advocate for statehood as well, just for different reasons. I feel like PR doesn't get adequate representation and voting power. For similar reasons, I'm all about D.C. statehood as well.

  • 30. VIRick  |  March 23, 2015 at 6:02 pm

    So do I. With DC, PR, and VI as states, we'd have 6 more Democratic Senators in the US Congress. In the House, we'd have 2, 7, and 1 representatives, all Democrats, with a number of those 10 "stolen" from red states..

  • 31. Wolf of Raging Fires  |  March 23, 2015 at 6:18 pm

    Exactly. :)

  • 32. DrBriCA  |  March 23, 2015 at 6:42 pm

    I was hoping we'd hear from the Fifth Circuit today, since it would be delicious irony to have marriage equality upheld in one of the most conservative circuits on the same day the biggest blowhard Tea Party Republican announces his presidential run.

    Oh well…. Back to waiting on the Fifth. Congrats to De Leon and her wife on their newborn second baby!

  • 33. ianbirmingham  |  March 23, 2015 at 7:14 pm

    Daily Kos article: Is RFRA Really a License to Discriminate? (Probably Not)

    http://www.dailykos.com/story/2015/03/17/1371516/

  • 34. 1grod  |  March 23, 2015 at 7:25 pm

    PUERTO RICO: Anti-Gay Pols Will Sue To Force Governor To Defend Marriage Ban http://joemygod.blogspot.com/

  • 35. Mike_Baltimore  |  March 23, 2015 at 7:31 pm

    Article VI, clause 2, of the US Constitution IS the Supremacy Clause.

    Google 'supremacy clause' and you will be directed to Article VI, clause 2 of the US Constitution.

  • 36. ianbirmingham  |  March 23, 2015 at 7:39 pm

    Thomas has been a bit stronger on 1st Amendment issues than Scalia, so I can't quite agree with your argument that he's worse than Scalia. However, Thurgood Marshall was not only a civil rights hero (he earned that title before joining the Supreme Court), he was certainly among the very greatest Supreme Court Justices of all time – much greater than anyone who is on the Supreme Court right now.

  • 37. Ryan K (a.k.a. KELL)  |  March 23, 2015 at 7:41 pm

    Couldn't have laid that out any clearer.

  • 38. sfbob  |  March 23, 2015 at 8:36 pm

    Lots to like there and I'm sorry I didn't read it when it was first posted.

    Discussion gets a bit contentious at times but I think the point the writer makes is a valid one. The "religious freedom" those on the Right are now attempting to invoke in order to provide those interested with the ability to discriminate under cover of law does not actually mean what they think it does. Rationally and logically that makes good sense as does the explanation as to what Hobby Lobby did and didn't address and what it ought to be able to be used to support in the future. The only downside is that of course the current Supreme Court is not at all shy about claiming in one decision that that decision doesn't provide an excuse for some other behavior and then immediately turning around and applying that first decision in a context they said it wouldn't apply to only days or weeks or months later. The "big four" (Roberts, Alito, Scalia and Thomas) aren't much worried about being consistent from decision to the next and depending on the specifics they are quite capable of getting Kennedy to go along with them.

  • 39. Fortguy  |  March 23, 2015 at 8:57 pm

    This is indeed very joyous news! The baby was born this past weekend seemingly without complications. Nicole Dimetman is, under Texas law, the "legal" parent since she was the gestational spouse. Cleopatra De Leon now must undergo the ordeal to legally become an adoptive parent, an expensive and time-consuming process. Too bad the courts didn't order the state to recognize their Massachusetts marriage before childbirth.

    This announcement has been surprisingly unreported in the media so far. The only report I've seen is:

    Texas Tribune: Republicans Vow to Continue Fight Against Gay Marriage

    For an in-depth look at the couple, the difficulties Ms. Dimetman endured to adopt their first child who Ms. De Leon carried to term, and a broad overview of the legal struggle for gay rights recently in Texas, peruse the following longread:

    Texas Monthly: To Love and to Cherish

  • 40. scream4ever  |  March 23, 2015 at 9:40 pm

    Wasn't this tried when the Obama administration stopped defending DOMA and it didn't work?

  • 41. VIRick  |  March 23, 2015 at 10:36 pm

    As I stated up above (in quite elegantly proper, formal Spanish), "She's full of shit."

  • 42. VIRick  |  March 23, 2015 at 10:42 pm

    Disturbed Man Tries to Get into White House
    http://www.newyorker.com/humor/borowitz-report/di

  • 43. F_Young  |  March 23, 2015 at 11:19 pm

    Wolf of Raging Fires: "I'm all about proportional representation. I'd take a Parliament over a Congress any day."

    The difference between a parliamentary system and a congressional system is not related to proportional representation. Either system could be based on proportional representation or first-past-the-post, or a combination.

    The difference between a parliamentary system and a congressional system is that in a parliamentary system the executive is not elected separately from the parliament. The Prime Minister and the Cabinet ministers are members of Parliament. Which party forms the government depends on which party wins the majority of the seats in parliament; if none do, it depends on which party can gain the support of the majority of the members of parliament.

  • 44. Fortguy  |  March 23, 2015 at 11:47 pm

    PR will be a state sooner rather than later. It's a shame it hasn't already been. If states are the laboratories of American democracy, PR has already relinquished the role it could have played as the first Hispanic state now that several Southwestern states are already on the cusp.

    The best DC can hope for is merely statutorily getting appropriate representation and true Congressional respect for their home rule effectively making them a state without the name. Anything more requires a Constitutional amendment.

    VI, along with the rest of the territories, I don't think has enough population to create a broad consensus for statehood. After all, Bill Maher always asks, "Why do we need two Dakotas?". I do believe that Amer. Samoans should be given citizenship, and that Guam should be combined with the Northern Mariana Islands. I also believe the Constitution should be extended broadly throughout the territories including removing the corrupt trade and immigration practices in the Marianas that let them be a haven for immigrant sweatshops and sex trafficking.

  • 45. davepCA  |  March 23, 2015 at 11:49 pm

    Brilliant : ) Thanks for this!

  • 46. Wolf of Raging Fires  |  March 24, 2015 at 3:33 am

    Cool. I learned something new. :)

  • 47. Wolf of Raging Fires  |  March 24, 2015 at 3:39 am

    Andy Borowitz is always hilarious! Love it.

  • 48. Wolf of Raging Fires  |  March 24, 2015 at 3:41 am

    Cool. I like the way you think, Fortguy :)

  • 49. Sagesse  |  March 24, 2015 at 4:02 am

    A very dense read, but useful and thought provoking. Good article.

  • 50. RemC_Chicago  |  March 24, 2015 at 5:00 am

    True enough. I saw them in despicable action during our ME battle.

  • 51. Zack12  |  March 24, 2015 at 5:47 am

    As did we all.
    Mary Flowers disguisting speech still sticks with me from that vote.

  • 52. JayJonson  |  March 24, 2015 at 6:40 am

    I don't think this is a very good article. It obfuscates rather than elucidates because it approaches the current crisis ass-backwards, asking whether the federal RFRA trumps anti-discrimination ordinances. It correctly answers that it does not because that was not the purpose of the law and its evocation in the Hobby Lobby case was not in the context of anti-discrimination law.

    But the article doesn't really analyze the state "religious liberty" ordinances that are indeed being promulgated in order to authorize discrimination by people who have "sincerely held religious beliefs." It assumes that the sponsors of these bills actually think that these bills are merely a refinement of the federal RFRA. I suspect if they actually thought that they would not think them necessary.

    The author only asserts that they are ultimately doomed to fail but does not say on what basis they will fail. Will a state or federal court declare them unconstitutional and on what grounds?

    In the majority of states in which gay people are not protected from discrimination in the first place, these new laws only affirm what is already policy. My hope is that since they are written broadly the first victims of these laws will be Christians, who are victimized by other Christians. That might prompt a speedy end to such laws.

    Clearly, what is needed is a national anti-discrimination law–ideally, a simple amendment adding sexual orientation and gender identity to the Civil Rights Law of 1964. Such a law could only be passed by a Congress with healthy Democratic majorities and a committed U.S. President.

  • 53. RemC_Chicago  |  March 24, 2015 at 6:50 am

    YES.

  • 54. OrvilleKlutz  |  March 24, 2015 at 9:17 am

    I suspect after marriage equality is the law of the land there will be discriminatory laws against LGBTs passed that will be challenged and the laws will be removed. In the meantime it will cost the taxpayers for these lawsuits against discriminatory state governments.

  • 55. OrvilleKlutz  |  March 24, 2015 at 9:23 am

    Neither of these two Supreme Court InJustices – Scab-lia and Thom_ass are worth their salaries. They are supposed to keep church and state separate, something that they are not able to do.

  • 56. ianbirmingham  |  March 24, 2015 at 10:05 am

    On the contrary, the entire article is all about analyzing the state RFRA laws:

    Plenty of us are rightly concerned about these "religious freedom" laws being passed in state after state, modeled after the federal Religious Freedom Restoration Act (RFRA) that was the basis for the Supreme Court's … ahem, controversial Hobby Lobby decision. By all appearances, these laws are an attempt by legislatures to create a right to discriminate, on "religious freedom" grounds, against anyone who it might otherwise be illegal to discriminate against. And we all know who they're looking at, and why. … At issue here is whether an anti-discrimination statute, i.e., one that forbids retail merchants from discriminating against customers on the basis of (inter alia) sexual orientation, would be trumped by a RFRA-type law in the same jurisdiction. Bearing in mind that we're talking about retail, i.e., goods and services that are openly, freely, universally and unconditionally offered for sale to the general public, that anyone and everyone has a right to come in and accept on the same terms as everyone else; would a RFRA-type law provide an excuse or justification for withdrawing that offer from certain customers post-acceptance, on "religious" grounds? … In order to invoke RFRA as an affirmative defense to a discrimination lawsuit, a merchant would have to demonstrate that the statute or ordinance in question (i.e., the one the merchant is accused of violating) places a "substantial burden" on the "exercise of" his purported "religious belief." The authenticity or sincerity of that "belief" is not an issue and is, really, not to be questioned, but it's also irrelevant. What's important is that the law in question be directed at something other than a specific religion, religious "belief" or set of "beliefs," or "exercise" thereof. Neutral laws of general applicability that only incidentally burden religious "belief" or "exercise" are not trumped by "religious liberty" or by a RFRA defense. … There is not now, has never been, and never will be, an anti-discrimination statute or ordinance in any U.S. jurisdiction whose passage comes anywhere close to having been solely or even primarily motivated by or based on a legislature's hostility to religion or disapproval of certain religious "beliefs." No such law is currently being considered, contemplated, proposed, suggested, supported or advocated by anyone, anywhere. General proscriptions of commercial discrimination against LGBT persons do not meet that criterion….

  • 57. F_Young  |  March 24, 2015 at 10:37 am

    OrvilleKlutz: "…and the laws will be removed."

    We will challenge them, of course, but whether we succeed or fail will depend on the composition of state courts deciding under the state constitution and the composition of SCOTUS. Unless the Democrats regain control of the US Senate, none of the Windsor 5 will be replaced by moderates; they may not be replaced at all.

  • 58. ianbirmingham  |  March 24, 2015 at 11:01 am

    Holding the Presidency is also necessary, since the President directly nominates Supreme Court Justices. The Senate must consent to the nomination, which makes retaking the Senate important too.

    The Senate playing field is improving as we speak…

    Republican Sen. Dan Coats of Indiana will retire, putting his seat on the map

    http://www.dailykos.com/story/2015/03/24/1373003/

    Former Indiana Democratic Senator Evan Bayh is still sitting on $10 million in campaign funds, and he appears to be the favorite to retake this seat for Team Blue.

    As for holding the Presidency, former Maryland Governor Martin O'Malley looks set to pull off the same feat that Obama did back in 2008.

    http://www.theatlantic.com/magazine/archive/2014/

    ,,, a practical progressive—he’s more liberal than Clinton or New York Governor Andrew Cuomo, but less of a firebrand than Massachusetts Senator Elizabeth Warren. ,,, Under O’Malley, Maryland was ranked first nationwide in public-school achievement by Education Week for five years in a row and twice designated the top state for innovation and entrepreneurship by the U.S. Chamber of Commerce. …

  • 59. Mike_Baltimore  |  March 24, 2015 at 11:16 am

    DC would only get 1 Congressperson if a state. The 2014 estimate of DC's population was a bit above 658,000. Rhode Island has 1,055,173 estimated population, and also has a single Congressperson. Five other states (Montana, Delaware, North and South Dakota, and Alaska) also have a higher estimated population than DC, but also have only a single Congressperson.

    All three of the above, though, would automatically, as states, get 2 Senators, and I'd expect all 3 to elect a pair of Democrats. That's why I don't think this Congress will allow any of them to become states, since doing so just dilutes the power of the GOTP in the Congress.

    Most of DC (except for about 5,000-10,000 population) could be made a state without a Constitutional Amendment being needed, if the Federal territory is carefully drawn to include Federal government buildings and spaces, and not including civilians. The US Constitution does not state that the district must be 10 miles square, but 'up to 10 miles square'. Nor does the Constitution state the District must be a 'single entity'. Thus it could be a big splotch centered on the mall, and various other bits and pieces (the headquarters for DHS, National Zoo, Bolling Airfield, etc.). In the 18th century, a Constitutional Amendment was not needed to sell back to Virginia what is now Arlington County and most of Alexandria City.

    Yes, I'm in favor of admitting DC, PR, and the VI as states, but I don't expect it to happen until the House, Senate and Presidency are firmly in Democratic hands (since I don't see the politics in any of the three non-states making dramatic shifts away from the Democrats).

  • 60. scream4ever  |  March 24, 2015 at 11:21 am

    A compromise could be to have DC be represented by the Maryland senators.

  • 61. scream4ever  |  March 24, 2015 at 11:30 am

    Which is why hopefully the Supreme Court grants heightened scrutiny in June as it will essentially make said laws unenforceable.

  • 62. ianbirmingham  |  March 24, 2015 at 12:00 pm

    Not true – RFRA laws simply raise the standard for considering religious freedom claims to the highest level, "strict scrutiny". The "heightened scrutiny" being considered here is still a lower level than "strict scrutiny".

    However, as explained by the Daily Kos article I linked to above, even strict scrutiny is unlikely to adversely affect anti-discrimination laws. The same is true for other laws – even if you are an ISIS member who thinks that religious belief commands you to murder gays, RFRA's strict scrutiny won't prevent you from being convicted of first degree murder.

  • 63. F_Young  |  March 24, 2015 at 12:04 pm

    scream4ever: "Which is why hopefully the Supreme Court grants heightened scrutiny in June as it will essentially make said laws unenforceable."

    I would be wonderful while it lasted, but, if the composition of SCOTUS changes, I think that that would be one of the first things to be overruled by a right-wing Republican SCOTUS..

  • 64. wes228  |  March 24, 2015 at 12:05 pm

    This is the way it was done before the Virginia half was retroceded. I actually wrote a proposed constitutional amendment which attracted the interest of my senator (Sheldon Whitehouse, who sits on the subcommittee for the Constitution). I was invited to speak with his Chief of Staff about it, which I did, but nothing ever came of it. Here was the text of it in case anyone is curious:

    SECTION 1. For the purposes of Congressional elections, representation, and the eligibility to serve in Congress, the citizens of the District of Columbia shall be considered citizens of the State of Maryland.

    SECTION 2. Following the ratification and implementation of this article, the Delegate representing the District of Columbia shall become a voting Representative in the House of Representatives, with all the rights, privileges, and immunities thereof, without regard to the apportionment of the Representatives of the several States, until a reapportionment of the House of Representatives has intervened.

    SECTION 3. The citizens of the District of Columbia shall be entitled to elect representatives to the legislature of the State of Maryland as if they formed an integral part of the State of Maryland, but such representatives shall have no voice or vote except on measures regarding constitutional amendments proposed to the legislatures of the several states, or when the legislature considers applying for a national constitutional convention for proposing amendments to this Constitution. Such representatives shall receive no compensation for their services.

    SECTION 4. When constitutional amendments are proposed to conventions assembled within the several States, the citizens of the District of Columbia shall be entitled to send delegates to the convention assembled within the State of Maryland as if they formed an integral part of the State of Maryland. When the State of Maryland sends delegates to a national constitutional convention, the citizens of the District of Columbia shall be entitled to send such delegates as if they formed an integral part of the State of Maryland.

    SECTION 5. When the House of Representatives must elect the President by voting in state delegations, any Representatives from the District of Columbia shall be considered members of the delegation from the State of Maryland.

    SECTION 6. Once ratified, this article shall be inoperative until it shall have been approved by the legislature of the State of Maryland.

  • 65. Mike_Baltimore  |  March 24, 2015 at 12:25 pm

    To be short and sweet, Maryland would NOT accept such an agreement, retrocession, etc.

    BTW – the portion now in Virginia is not, and never was, 'about' 1/2 of the District. It was approximately 31 square miles out of the District's original total of 100 square miles, or about 31% of the original District area.

  • 66. Eric  |  March 24, 2015 at 1:13 pm

    How many members would the house need for equal representation, where each Congressional district represents the exact same number of people plus or minus one person?

  • 67. JayJonson  |  March 24, 2015 at 1:44 pm

    Au contraire. The author thinks that the information he provides about RFRA is relevant to the new state laws that are now being passed and assumes that SCOTUS will find them unconstitutional. But he never addresses that issue. Instead, he addresses an issue that we here agree with: the laws are not necessary because no authority has ever passed an anti-discrimination ordinance or statute that is motivated by hostility to religion.

    However, the politicians who are passing these laws believe (or pretend to believe) that our very existence or at least our assumption that we have equal rights offend their religious beliefs and that they are entitled to discriminate against us.

    The entire approach to the problem by this article is ass-backwards. The issue is not whether these stupid laws are necessary (they are not), but how they can be challenged. He should explain on what basis a court would find the new laws unconstitutional.

    The New Mexico Supreme Court decision in the photography case that upheld the state's human rights law was, of course, based on NM's state constitution and statutory history. But is it likely that the Alabama Supreme Court or the Kansas Supreme Court or any red state supreme court populated by elected justices will hold the state rfra laws unconstitutional particularly in the absence of any laws that protect glbt people from discrimination? Not bloody likely, I'd say.

    In one sense, these new laws are mostly redundant since they are being passed in states that do not offer protection to glbt people in the first place (though some of these states cities or counties that do–which is why states like Arkansas and Tennessee have attempted to prevent all jurisdictions from adding sexual orienation and gender identity to their anti-discrimination ordinances).

    A more useful article would be an analysis of how and on what grounds these new laws can be challenged.

  • 68. hopalongcassidy  |  March 24, 2015 at 1:58 pm

    Mierda de toro, yo creo.

  • 69. ianbirmingham  |  March 24, 2015 at 4:30 pm

    RFRAs provide strict scrutiny protection to religious freedom, which is a constitutional right. Strict scrutiny should be the general rule for all constitutional rights. Hence, RFRAs are a good thing and not a bad thing. Hence the very idea of "challenging" these laws is fundamentally wrong.

    The valid question is whether local RFRAs might interfere with anti-discrimination laws, and as clearly explained in the article the answer to that question is NO.

    .. .In order to invoke RFRA as an affirmative defense to a discrimination lawsuit, a merchant would have to demonstrate that the statute or ordinance in question (i.e., the one the merchant is accused of violating) places a "substantial burden" on the "exercise of" his purported "religious belief." … Neutral laws of general applicability that only incidentally burden religious "belief" or "exercise" are not trumped by "religious liberty" or by a RFRA defense. … There is not now, has never been, and never will be, an anti-discrimination statute or ordinance in any U.S. jurisdiction whose passage comes anywhere close to having been solely or even primarily motivated by or based on a legislature's hostility to religion or disapproval of certain religious "beliefs." No such law is currently being considered, contemplated, proposed, suggested, supported or advocated by anyone, anywhere. General proscriptions of commercial discrimination against LGBT persons do not meet that criterion. …

  • 70. Wolf of Raging Fires  |  March 24, 2015 at 4:45 pm

    "…the statute or ordinance in question (i.e., the one the merchant is accused of violating) places a 'substantial burden' on the 'exercise of' his purported 'religious belief'…"

    The exception here being the Hobby Lobby case. That set an unhealthy precedent towards forming exceptions on behalf of religious liberty towards "generally applicable laws."

  • 71. JayJonson  |  March 24, 2015 at 4:47 pm

    Ianbirmingham, you are simply repeating yourself. This passage, which you also previously posted, has nothing to do with the basis on which to challenge these laws. It simply says that the federal RFRA does not provide an affirmative defense to someone accused of discrimination since no law has been passed that infringes religious liberty. So what? We are not talking about the federal RFRA, which as far as I know, has very infrequently been invoked, and significantly only in the context of challenging a provision of the Affordable Care Act.

    We are talking about how to challenge state laws that purport to be based on the RFRA but which attempt to do something very different. Why is this so difficult to understand?

    The "religious liberty" laws that have been passed allow people to discriminate if they allege that they have strongly held religious views. They are clearly aimed at licensing discrimination against gay people.

    The question is how does one challenge these laws. The article you link to does not answer this question. It in fact evades the question by approaching it backasswards. Who cares if the legislators are misinterpreting the federal RFRA? They know that. If they thought the federal RFRA allowed their citizens to discriminate against homosexuals simply by evoking the federal RFRA, they would not have gone to the trouble of passing their state laws licensing discrimination.

    Let me repeat the question: on what grounds does one challenge the state "religious liberty" laws?

  • 72. ianbirmingham  |  March 24, 2015 at 4:56 pm

    Hobby Lobby is discussed in the article & it does not do what you say it does…

    It's important to remember that Hobby Lobby, whatever you think of the ruling, was based on RFRA, not grounded in the Free Exercise clause of the First Amendment, which has never been held to be an excuse or justification for unlawful behavior, viz., for violating the rights of and/or inflicting legal injury on others. … Hobby Lobby did not, as mentioned above, involve an anti-discrimination statute, let alone one that addresses retail commerce or public accommodation. It may be partially instructive on this issue, if only to the extent that it might allow the discriminatory treatment so long as the customer can be accommodated, something that was essentially already true before Hobby Lobby and that that case didn't really change. More importantly, though, Hobby Lobby challenged an administrative regulation, not the Affordable Care Act itself; it was the administrative agency (HHS), not the law, that purportedly imposed the "substantial burden" on the corporation's "exercise of religion." Hence the question of whether the ACA itself was passed with the intent of burdening religious liberty or condemning certain religious beliefs never came up in that case, and it is therefore not instructive on the "substantial burden" issue vis-à-vis state and local anti-discrimination laws.

  • 73. ianbirmingham  |  March 24, 2015 at 5:01 pm

    Why Indiana needs 'religious freedom' legislation
    By Daniel O. Conkle, Professor, Indiana University Maurer School of Law
    Indianapolis Star, March 7, 2015

    I am a supporter of gay rights, including same-sex marriage. But as an informed legal scholar, I also support the proposed Indiana Religious Freedom Restoration Act (RFRA). How can this be?

    It's because — despite all the rhetoric — the bill has little to do with same-sex marriage and everything to do with religious freedom.

    The bill would establish a general legal standard, the "compelling interest" test, for evaluating laws and governmental practices that impose substantial burdens on the exercise of religion. This same test already governs federal law under the federal RFRA, which was signed into law by President Bill Clinton. And some 30 states have adopted the same standard, either under state-law RFRAs or as a matter of state constitutional law.

    Applying this test, a unanimous U.S. Supreme Court recently ruled that a Muslim prisoner was free to practice his faith by wearing a half-inch beard that posed no risk to prison security. Likewise, in a 2012 decision, a court ruled that the Pennsylvania RFRA protected the outreach ministry of a group of Philadelphia churches, ruling that the city could not bar them from feeding homeless individuals in the city parks.

    If the Indiana RFRA is adopted, this same general approach will govern religious freedom claims of all sorts, thus protecting religious believers of all faiths by granting them precisely the same consideration.

    But granting religious believers legal consideration does not mean that their religious objections will always be upheld. And this brings us to the issue of same-sex marriage.

    Under the Indiana RFRA, those who provide creative services for weddings, such as photographers, florists or bakers, could claim that religious freedom protects them from local nondiscrimination laws. Like other religious objectors, they would have their day in court, as they should, permitting them to argue that the government is improperly requiring them to violate their religion by participating (in their view) in a celebration that their religion does not allow.

    But courts generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions. Even in the narrow setting of wedding-service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted the RFRA test. A court could rule otherwise, protecting religious freedom in this distinctive context. But to date, none has.

    In any event, most religious freedom claims have nothing to do with same-sex marriage or discrimination. The proposed Indiana RFRA would provide valuable guidance to Indiana courts, directing them to balance religious freedom against competing interests under the same legal standard that applies throughout most of the land. It is anything but a "license to discriminate," and it should not be mischaracterized or dismissed on that basis.

    http://www.indystar.com/story/opinion/readers/201

  • 74. Decided_Voter  |  March 24, 2015 at 6:29 pm

    Update: Plaintiffs file motion to dismiss since they're already married.
    https://www.facebook.com/EqualityCaseFiles/posts/

  • 75. Decided_Voter  |  March 24, 2015 at 6:33 pm

    8th Circuit marriage panel:

    Roger L. Wollman (Reagan), Lavenski R. Smith (Bush II), and Duane Benton (Bush II). Smith was on the Bruning panel and signed onto upholding the ban. These three granted the stay in NE.
    https://www.facebook.com/EqualityCaseFiles/posts/

  • 76. JayJonson  |  March 25, 2015 at 6:41 am

    At least the article you post above addresses the actual statute rather than the federal version. But again it does not really explain how to challenge the statute and it presumes that the state would oppose discrimination against gay couples when the state has repeatedly declined to do so.

    The author writes: "courts generally have ruled that the government has a compelling interest in preventing discrimination and that this interest precludes the recognition of religious exceptions."

    If the state of Indiana believed that it had a compelling interest in preventing discrimination against gay people and that its interest precluded the recognition of religious exceptions, then it would never have passed this bill in the first place.

    This professor is either being purposely disingenuous or engaging in a spurious kind of damage control. The entire legislative history of this bill indicates that the interest the state thinks it is protecting is the interest of religious people in discriminating against gay people.

  • 77. F_Young  |  March 25, 2015 at 7:17 am

    Jay Johnson: "The entire legislative history of this bill indicates that the interest the state thinks it is protecting is the interest of religious people in discriminating against gay people."

    Absolutely agree. And the bill would encourage genuinely and opportunistically religious people to do so with an expectation of impunity, and would deny LGBTs their rights until they go to court every time.

    If the legislators and bill were neutral actors in these conflicts, the bill would also oppose burdening sexual orientation and gender identity, not just religion, which gets preferential treatment.

  • 78. JayJonson  |  March 25, 2015 at 8:08 am

    Precisely. The professor says that the federal RFRA already protects religious freedom, which of course makes one ask why then does the Indiana Legislature and governor think it necessary to add a state RFRA. The answer, of course, is not that they want to protect religious liberty (which the federal RFRA already protects) but that they want to encourage discrimination against gay people. That is the context in which this small-minded and vicious little bill was passed and that is exactly what the bill will do.

    With this bill in place, the only way to challenge discrimination against gay people is by gay people going to court and assuming the cost of such litigation. The legislature has offered those who discriminate a positive defense, guaranteeing them impunity, and making it unlikely that gay people will actually sue people who engage in petty apartheidt against them. In other words, the bill seeks to consign gay people to second-class status.

    The professor who wrote the article that ianbirmingham links to is more than a little disingenuous.

  • 79. SoCal_Dave  |  March 25, 2015 at 8:38 am

    Agree 100%. In the article he states that "courts generally" have been siding with nondiscrimination. That's just what the state is afraid of. It's no coincidence that they are pushing this *now*.

  • 80. mvymvy  |  March 25, 2015 at 10:54 am

    "Awarding electoral votes by a proportional or congressional district [used by Maine and Nebraska] method fails to promote majority rule, greater competitiveness or voter equality. Pursued at a state level, both reforms dramatically increase incentives for partisan machinations. If done nationally, a congressional district system has a sharp partisan tilt toward the Republican Party, while the whole number proportional system sharply increases the odds of no candidate getting the majority of electoral votes needed, leading to the selection of the president by the U.S. House of Representatives.

    For states seeking to exercise their responsibility under the U.S. Constitution to choose a method of allocating electoral votes that best serves their state’s interest and that of the national interest, both alternatives fall far short of the National Popular Vote plan . . ." –FairVote

    The National Popular Vote bill would guarantee the majority of Electoral College votes, and thus the presidency, to the candidate who receives the most popular votes in the country, by replacing state winner-take-all laws for awarding electoral votes in the enacting states.

    Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps of pre-determined outcomes. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in 80% of the states that now are just 'spectators' and ignored after the conventions.

    The bill would take effect when enacted by states with a majority of Electoral College votes—that is, enough to elect a President (270 of 538). The candidate receiving the most popular votes from all 50 states (and DC) would get all the 270+ electoral votes of the enacting states.

    The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, red, blue, and purple states with 250 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.

    NationalPopularVote.com

  • 81. ianbirmingham  |  March 25, 2015 at 12:40 pm

    1) The professor is not being disingenuous. His analysis is exactly correct.

    2) The legislative history being replete with pronouncements of bigoted motivation is par for the course in a red state. As Daily Kos correctly observes, the RFRA law they are enacting will not produce the results that the bellowing herd of wingnuts is fantasizing about.

    3) State RFRAs do serve a legitimate purpose – unlike the federal RFRA which only applies to federal law, state RFRAs apply strict scrutiny to religious freedom claims related to state law. The professor clearly pointed this out.

    4) I say again: RFRAs provide strict scrutiny protection to religious freedom, which is a constitutional right. Strict scrutiny should be the general rule for all constitutional rights. Hence, RFRAs are a good thing and not a bad thing. Hence the very idea of "challenging" these laws is fundamentally wrong.

    5) Yes, there may be a need to defend anti-discrimination laws in court. That defense will succeed and Indiana precedent will be established accordingly.

    As others have noted, legal same-sex marriage does not constitute a rationale for dismantling the legal defense systems of the gay community. Those systems must be maintained and from time to time they will be tested. That too is par for the course.

  • 82. JayJonson  |  March 25, 2015 at 12:55 pm

    You have really drunk the koolaid. I guess you could write to Arizona Governor Brewer and ask her to reconsider her veto of the Arizona bill like this and, while you're at it, sign on to the Oklahoma and Texas bills.

    These bills encourage discrimination. The fight against them will cost millions of dollars. To pretend that they are something other than they are is at best disingenuous. At worse, it is either ignorance or deception.

  • 83. SoCal_Dave  |  March 25, 2015 at 8:06 pm

    Agree, once again, Jay.
    To Ian I will say that the article is interesting and makes some interesting arguments. But that's all they are – arguments, and there's no guarantee that the laws would be interpreted the way the author interprets them. Someone like Moore or Scalia is not going to go along with that line of reasoning. These laws just give another excuse to treat us as 2nd class citizens. And that is their purpose. It's no accident that suddenly religions need all this new "protection". I'm calling bullshit.

  • 84. ianbirmingham  |  March 25, 2015 at 8:48 pm

    Actually, Scalia has long been a big opponent of religious freedom as a means of gaining exemptions from generally applicable laws – go read the majority opinion Scalia wrote in the 1990 case Employment Division v. Smith.

    As for Moore, this is the doofus who thought he could mount a Ten Commandments monument in a courtroom. At that level of insanity you can get any kind of brain-damaged response no matter what the law actually says.

    This isn't a 2nd class citizenship law at all; it applies strict scrutiny to a constitutional right, which as I have repeatedly stated is a good thing and should be done for all constitutional rights. Moreover, any state law has to be consistent with Romer v. Evans – the Supreme Court decision establishing that Colorado could not treat gays as 2nd class citizens. And recall also that the law of public accomodations overcame racism (preventing businesses from refusing to serve black customers, as some racist store managers tried to do back in the 1960s); it can easily handle homophobia.

  • 85. SoCal_Dave  |  March 25, 2015 at 9:54 pm

    I know I named Moore and Scalia but I didn't mean them specifically, I meant judges *like* them who are more than happy to close their eyes to rational arguments if they lead to pro-LGBT conclusions. We can't depend on courts going our way just because it makes sense to us.

    And why should we be forced to go to court anyway? That's your proposal, isn't it? When the religionists discriminate against LGBT, citing their RFRA laws and their strict scrutiny, we, who don't have that, we have to sue them.

    It is not a big coincidence that these laws are coming up in red states at this time. There is no sudden attack on religion in red states requiring additional protections, except the perceived "threat" of having to accept marriage equality. These laws are clearly intended to be used against us, not for real religious freedom.

  • 86. VIRick  |  March 25, 2015 at 10:15 pm

    This is the so-called "religious freedom" legislation already coming back to bite Indiana in the ass. I love the hyper-pious wording of a Christian organization (of which I know next to nothing) telling the red-state politicians where they can stuff it:

    INDIANA: Christian Church Threatens To Pull Convention Over Anti-Gay Bill

    From the "Indianapolis Star:"

    The Christian Church (Disciples of Christ) has sent a letter to Gov. Mike Pence threatening to cancel its 2017 convention in Indianapolis if he signs controversial legislation that could allow business owners to refuse services to same-sex couples. "Our perspective is that hate and bigotry wrapped in religious freedom is still hate and bigotry," Todd Adams, the associate general minister and vice president of the Indianapolis-based denomination, told The Indianapolis Star. Adams said the Disciples of Christ would instead seek a host city that is "hospitable and welcome to all of our attendees." The letter stated the church is inclusive of different races, ethnicities, ages, genders and sexual orientations. "As a Christian church," it read, "we are particularly sensitive to the values of the One we follow – one who sat at (the) table with people from all walks of life, and loved them all. Our church is diverse in point of view, but we share a value for an open Lord's Table."

    All I can add is: Our allies are strange and diverse.

  • 87. VIRick  |  March 25, 2015 at 10:27 pm

    And this: The revenge of the Nerds, an even bigger deal!

    INDIANA: Massive Gaming Convention Threatens To Leave The State

    Also from the "Indianapolis Star:"

    The organizers of Gen Con, Indianapolis' largest convention in attendance and economic impact, are threatening to move the event elsewhere if Gov. Mike Pence signs controversial religious freedom legislation that could allow business owners to refuse services to same-sex couples.

    "Legislation that could allow for refusal of service or discrimination against our attendees will have a direct negative impact on the state's economy, and will factor into our decision-making on hosting the convention in the state of Indiana in future years," said Adrian Swartout, owner and CEO of Gen Con LLC, in a letter sent to Pence just hours after lawmakers sent the measure to his desk.

    Gen Con's website describes the convention as "the original, longest-running, best-attended gaming convention in the world!" The conference attracted 56,000 people last year to the Indiana Convention Center and has an annual economic impact of more than $50 million, Swartout said in the letter.

    "Gen Con proudly welcomes a diverse attendee base, made up of different ethnicities, cultures, beliefs, sexual orientations, gender identities, abilities, and socio-economic backgrounds," she wrote. "We are happy to provide an environment that welcomes all, and the wide-ranging diversity of our attendees has become a key element to the success and growth of our convention."

  • 88. VIRick  |  March 25, 2015 at 10:43 pm

    So, if a pious Christian church organization and the assembled gaming nerds can smell/see/taste/feel discrimination when presented to them, I'll happily take their combined word that they're on the right track.

    For openers, it would appear that Indiana (in my opinion, the original fly-over state), with the passage of this so-called "religious freedom" legislation, which even this pious Christian organization doesn't need/want and objects to, just flushed its major convention business down the toilet.

    Indiana's problem stems from the fact that it's that dead space between 3 major metro areas, Chicago, Louisville, and Cincinnati, all of which are just outside the state's borders. Indianapolis simply does not have enough population to counter-balance the rest of that rural/small town, small-minded state.

  • 89. ianbirmingham  |  March 26, 2015 at 3:40 am

    No, you have that completely backwards.

    RFRA's strict scrutiny can be used as a legal defense by people who are charged by the state with violating anti-discrimination laws. A member of ISIS could also murder a gay person and then use RFRA's strict scrutiny as a defense when charged with murder. In both cases, this defensive tactic would fail.

    As an offensive tactic, RFRA could be used to sue a state for allegedly violating religious freedom, for example if there was a state law against purchasing freshly cut trees in December. However, "we" would not be involved – the state would have to defend its law.

  • 90. ianbirmingham  |  March 26, 2015 at 4:03 am

    These are well-intentioned organizations whose understanding of the situation is simply incorrect. Our side's political capital should be conserved for use against a genuine threat to our interests, and not expended uselessly against RFRAs which are in fact a legal improvement.

    Here are some good examples of state RFRAs in action:

    State courts have also applied RFRAs to protect their citizens. The Virginia Court of Appeals protected a Native American couple’s right to possess bird feathers used in prayer. The Tennessee Court of Appeals held that the state couldn’t autopsy a man over his family’s religious objections. The Ohio Court of Appeals noted that a statute banning a Sikh man from carrying a ceremonial sword for religious reasons would face scrutiny under a religious-liberty statute. Religious-liberty statutes are particularly important to religious prisoners. Courts have found, for example, that such laws require Jewish prisoners to be provided kosher food; Muslim prisoners to be provided halal food and access to prayer oils; and Native American prisoners to wear religious clothing and have access to certain items used while praying.

    http://www.nationalreview.com/article/410893/why-

  • 91. JayJonson  |  March 26, 2015 at 6:46 am

    Again, you completely misunderstand the bill you are promoting. In a state like Indiana which has no statewide protections for gay people, if someone is charged in one of the few jurisdictions, such as Indianapolis, that offers some small measure of protection to gay people, for discrimination, under this bill the state would intervene on behalf of the accused, who would not only be able to mount a religious belief as a defense, but would also have the support of the state.

    In contrast, should some gay couple sue a bakery for discriminating against them, the bakery could not only be insulated from the claim as a result of this act, but the gay couple could be assessed penalties for the baker's attorney's fees and court costs.

    You completely misunderstand the ramifications of this law. You have accepted as true the soothing words of bigots who pretend to be victimized by laws that require them to treat people fairly.

  • 92. Zack12  |  March 26, 2015 at 6:48 am

    Sorry, a right wing hack site trying to spin these latest bills as versions of those is a flat out lie.
    These latest bills serve one purpose and one purpose only, to gut local discrimination laws protecting LGBT people and to make discrimination against us legal.
    The bigots pushing these bills have even said as much in some cases.
    No matter how times you try to tell us otherwise, these bills are anti-gay, period.

  • 93. JayJonson  |  March 26, 2015 at 6:53 am

    Ah yes, the National Review loves these bills, so that makes them all right, for after all, the NR is a bastion of equal rights. NOT!

    The NR has not gotten over the fact that the Civil Rights Act of 1964 is the law of the land, much less that gay people deserve equal rights.

  • 94. Zack12  |  March 26, 2015 at 7:20 am

    Indeed, and he also fails to mention that in Indiana, Arkansas and the other states that have pushed these bills, the Focus On the Family bigots for those states have been the one pushing for them.
    The fact he can type with a straight face that there is no anti-gay animus involved is a joke.

  • 95. ianbirmingham  |  March 26, 2015 at 7:21 am

    The state may join the case but is not required to. No matter which side the state is on, the case will be decided on its legal merits. And where anti-discrimination laws are concerned, the RFRA defense is without merit.

    Furthermore, gay couples cannot sue an Indiana bakery for discriminating against them, either before or after the passage of RFRA. In fact, in Indianapolis, one year ago, there was a documented case of legal bakery discrimination against a gay couple: "Businesses in Indiana can lawfully discriminate against and refuse to do business with individuals because of their sexual orientation or gender identity."

    http://www.towleroad.com/2015/02/indianapolis-bak

    Indiana's city and county anti-discrimination laws relating to sexual orientation apply only to employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

  • 96. ianbirmingham  |  March 26, 2015 at 7:40 am

    Gay couples cannot sue an Indiana business for discriminating against them, either before or after the passage of RFRA. In fact, in Indianapolis, one year ago, there was a documented case of legal bakery discrimination against a gay couple: "Businesses in Indiana can lawfully discriminate against and refuse to do business with individuals because of their sexual orientation or gender identity."

    http://www.towleroad.com/2015/02/indianapolis-bak

    Indiana's city and county anti-discrimination laws relating to sexual orientation apply only to employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

    RFRA will not reduce in any way existing Indiana city, county and state protections against employment discrimination on the basis of sexual orientation.

  • 97. Zack12  |  March 26, 2015 at 7:49 am

    Then why pass them?
    Oh yes, to drive the point home that they don't like us and to gut the protections LGBT folks in Indiana do have.
    Sorry, this is bigotry, no matter how hard you try to spin otherwise.

  • 98. ianbirmingham  |  March 26, 2015 at 7:51 am

    Quoting the very same National Review article:

    The Supreme Court has found that states have a compelling interest in eliminating discrimination in public accommodations. A handful of courts have found that states have a compelling governmental interest in prohibiting discrimination on the basis of sexual orientation.

    Quoting the United States Supreme Court:

    … it is relevant to note that the Court has recognized the State's "compelling interest" in combating invidious discrimination.

    https://supreme.justia.com/cases/federal/us/487/1

    Quoting the District of Columbia Court of Appeals (in the Georgetown case that others have referenced already):

    …we hold that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination outweighs any burden imposed upon Georgetown's exercise of religion by the forced equal provision of tangible benefits.

    http://www.leagle.com/decision/1987537536A2d1_153

  • 99. ianbirmingham  |  March 26, 2015 at 7:57 am

    The bigoted rhetoric speaks for itself. That is a sociopolitical problem in Indiana.

    The legal aspects of RFRA are a different matter. As I have explained already, RFRA will not interfere at all with anti-discrimination protections. But please feel free to post the legal details of what you (incorrectly) imagine to be a scenario in which that could happen.

    This is the application of strict scrutiny to a constitutional right. That's a good thing. Strict scrutiny should apply to all constitutional rights.

    There is, in a sense, discrimination taking place here. Constitutional rights that conservatives value (religious freedom, etc.) are getting elevated to the highest levels of scrutiny while constitutional rights that progressives value are stuck at lower levels of scrutiny and are only slowly progressing toward higher levels (sexual orientation discrimination may soon make it to "heightened scrutiny"). That doesn't mean that conservatives are wrong – they are doing the right thing for the constitutional rights that they care about. Our side needs to also do the right thing by also pushing the constitutional rights that we care about to the highest level of scrutiny. That's being done, but not as quickly as the other side is moving theirs.

  • 100. ianbirmingham  |  March 26, 2015 at 8:05 am

    I never said that there was no anti-gay animus involved. What I said was that the RFRA law would not implement that animus and would in fact be a positive legal development which strengthens constitutional rights.

  • 101. SoCal_Dave  |  March 26, 2015 at 8:17 am

    Follow the support. These laws are being proposed by right-wingers, christianistas, and other bigots pining for the good old days when gays knew their place and kept their mouths shut, not by sweet faithful souls being denied their right to practice their beliefs.

  • 102. ianbirmingham  |  March 26, 2015 at 8:28 am

    I understand that. This is a case in which they are saying bad things but actually doing a good thing. We need to be smart enough to understand the difference & focus our limited resources on situations in which our interests really are at risk. RFRA is a free gift and we should take it.

    The bigoted rhetoric is another matter. That rhetoric can and should be firmly criticized.

  • 103. JayJonson  |  March 26, 2015 at 9:04 am

    Again, you fail to understand the context. DC has made it a nondiscrimination a matter a compelling interest. That is not true of Indiana. Indeed, Indiana has repeatedly made the right of religious people to discriminate a matter of compelling interest.

  • 104. ianbirmingham  |  March 26, 2015 at 9:52 am

    The Indiana counties and cities that have anti-discrimination laws have exactly that compelling interest ("in the eradication of sexual orientation discrimination") behind those laws. Accordingly, those laws will be upheld.

    Furthermore, the state of Indiana says:

    IC 22-9-1-2
    Public policy; construction of chapter

    Sec. 2. (a) It is the public policy of the state to provide all of its citizens equal opportunity for education, employment, access to public conveniences and accommodations, and acquisition through purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, disability, national origin or ancestry, since such segregation is an impediment to equal opportunity. Equal education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property are hereby declared to be civil rights.

    http://www.state.in.us/icrc/files/ch1.pdf

  • 105. F_Young  |  March 26, 2015 at 10:06 am

    inabirnigham: :"RFRA is a free gift and we should take it."

    In what way is it a free gift to LGBTs? Strict scrutiny would only apply to religion, For sexual orientation and gender identity, the best we have been able to get is heightened scrutiny in some circuits. How would this get us strict scrutiny?

  • 106. JayJonson  |  March 26, 2015 at 10:20 am

    Yes, as you point out, the policy of the state of Indiana is to allow discrimination against gay people. THAT is their compelling interest. Hence, the RFRA will provide even greater protection to those who want to discriminate against gay people. That is why it is known as a license to discriminate bill.

  • 107. ianbirmingham  |  March 26, 2015 at 10:26 am

    It is a free gift because it elevates the enforcement of a constitutional right to the highest level (strict scrutiny) which is where all constitutional rights should be.

    For sexual orientation and gender identity, certain situations are possible in which strict scrutiny can be acquired via association.

    Hypothetical example: Suppose that a fundamental tenet of the Church of Her Divine Holiness is that feminine characteristics are sacred and holy, and that practictioners of this religion must always display these characteristics. Accordingly, all male members of the religious order are required to cross-dress at all times. Under RFRA, strict scrutiny applies.

  • 108. ianbirmingham  |  March 26, 2015 at 10:37 am

    You are jumping to conclusions. The fact that sexual orientation and gender identity discrimination are not specifically proscribed does not mean that Indiana has a public policy of endorsing discrimination. On the contrary, Indiana's public policy generally opposes discrimination:

    IC 22-9-1-2
    Public policy; construction of chapter

    Sec. 2. (a) It is the public policy of the state to provide all of its
    citizens equal opportunity for education, employment, access to public conveniences and accommodations, and acquisition through
    purchase or rental of real property, including but not limited to housing, and to eliminate segregation or separation based solely on race, religion, color, sex, disability, national origin or ancestry, since
    such segregation is an impediment to equal opportunity. Equal
    education and employment opportunities and equal access to and use of public accommodations and equal opportunity for acquisition of real property are hereby declared to be civil rights.

    http://www.state.in.us/icrc/files/ch1.pdf

  • 109. JayJonson  |  March 26, 2015 at 1:54 pm

    What you quote indicates that Indiana may have a compelling interest in preventing discrimination based on race (and other enumerated categories); it says absolutely nothing about a compelling interest in preventing discrimination on the basis of sexual orientation and gender identity.

    Your argumentation on this issue has been obfuscatory at best and, in this instance, actually dishonest. You should be ashamed of yourself.

  • 110. JayJonson  |  March 26, 2015 at 1:58 pm

    "race, religion, color, sex, disability, national origin or ancestry," yes, but what is conspicuously absent is sexual orientation and gender identity. The state of Indiana has deliberately and repeatedly refused to include protection against discrimination on the basis of sexual orienation and gender identity. It is manifestly NOT a compelling interest of the state of Indiana to prevent discrimination on the basis of sexual orientation or gender identity despite your attempt to dissemble otherwise.

  • 111. ianbirmingham  |  March 26, 2015 at 2:08 pm

    The compelling interest in preventing discrimination on the basis of sexual orientation is properly documented at the state level in the form of executive orders against employment discrimination, and at county and city levels in the form of laws against employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

    On top of that, explicitly stated Indiana public policy generally regards equal access to public accomodations as a civil right.

    http://www.state.in.us/icrc/files/ch1.pdf

    The blathering of bigots in the Legislature does not create public policy and courts will not infer public policy from such statements. Only the established laws and rules of the state are considered valid sources for determining what the public policy of the state is.

    "Public policy may be found in the state
    constitution, in the letter and purpose of a constitutional, statutory or regulatory
    provision or scheme, in the judicial decisions of the state and national courts, in the constant practice of the government officials, and, in certain instances, in professional codes of ethics. Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985)."

    http://hr.cch.com/ELD/GrahamHubbs.pdf

    Regarding gender identity:

    "Indiana will issue an amended birth certificate upon court order. The old record is sealed and the new record/certificate does not reveal the fact that amendments have taken place. The order must specifically order the Indiana State Department of Health (ISDH) to change the sex on your birth certificate. You will need to produce a surgeon's letter to the court as evidence of (genital) surgery."

    http://wiki.susans.org/index.php/Changing_sex_on_

  • 112. ianbirmingham  |  March 26, 2015 at 2:23 pm

    The blathering of bigots in the Legislature does not create public policy and courts will not infer public policy from such statements. Inaction does not create public policy either. Only the established laws and rules of the state are considered valid sources for determining what the public policy of the state is.

    "Public policy may be found in the state
    constitution, in the letter and purpose of a constitutional, statutory or regulatory
    provision or scheme, in the judicial decisions of the state and national courts, in the constant practice of the government officials, and, in certain instances, in professional codes of ethics. Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. Ct. App. 1985)."

    http://hr.cch.com/ELD/GrahamHubbs.pdf

    The compelling interest in preventing discrimination on the basis of sexual orientation is properly documented at the state level in the form of executive orders against employment discrimination, and at county and city levels in the form of laws against employment discrimination.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Indi

    On top of that, explicitly stated Indiana public policy generally regards equal access to public accomodations as a civil right.

    http://www.state.in.us/icrc/files/ch1.pdf

    Regarding gender identity:

    "Indiana will issue an amended birth certificate upon court order. The old record is sealed and the new record/certificate does not reveal the fact that amendments have taken place. The order must specifically order the Indiana State Department of Health (ISDH) to change the sex on your birth certificate. You will need to produce a surgeon's letter to the court as evidence of (genital) surgery."

    http://wiki.susans.org/index.php/Changing_sex_on_

  • 113. VIRick  |  March 26, 2015 at 2:55 pm

    "These are well-intentioned organizations whose understanding of the situation is simply incorrect."

    Regardless, these groups, representing very different socio/politico/cultural organizations, the Christian Church (Disciples of Christ) and the Gen Com gaming nerds, both of which have always been based in Indiana, are clearing out of the state as a direct result of the "right to discriminate" legislation just signed into law there. Neither wishes to take any chances that its assembled members will face any sort of discriminatory treatment.

    I also suspect that this is just the very beginning of the stampede out of Indiana for holding national conventions and major organizational gatherings.

    As the spokesperson for the Christian Church (Disciples of Christ, Todd Adams, stated, ""Our perspective is that hate and bigotry wrapped in religious freedom is still hate and bigotry."

  • 114. VIRick  |  March 26, 2015 at 3:25 pm

    $4 Billion Corp. To Indiana: We Warned You About RFRA, Now We're 'Forced To Dramatically Reduce Our Investment'

    CNN reports, "The chief executive of tech giant Salesforce told Pence that his company — which had bought Indianapolis-based Exact Target for $2.5 billion in 2013 — would abandon the state and its expansion plans there if he signed the measure into law."

    Salesforce CEO Marc Benioff: "Today (26 March 2015), we are canceling all programs that require our customers/employees to travel to Indiana to face discrimination."

    Next out the door: The NCAA

    INDIANAPOLIS — NCAA President Mark Emmert said Thursday (26 March 2015) that the governing body for college sports is concerned about an Indiana law that could allow businesses to discriminate against LGBT people.

    “We are especially concerned about how this legislation could affect our student-athletes and employees,” Emmert said in a statement released not long after the bill was signed into law by Indiana Gov. Mike Pence.

    The NCAA is located in Indianapolis and the men’s basketball tournament’s Final Four will be held there next week.

    “We will work diligently to assure student-athletes competing in, and visitors attending, next week’s Men’s Final Four in Indianapolis are not impacted negatively by this bill,” Emmert said. “Moving forward, we intend to closely examine the implications of this bill and how it might affect future events as well as our workforce.”

    The hint: The NCAA may well consider re-locating to a different state.

  • 115. ianbirmingham  |  March 26, 2015 at 3:35 pm

    Although based upon a misunderstanding of RFRAs, all these departures & avoidances may well push Indiana in the right direction, causing Indiana to reinforce its general public policy against discrimination with additional specific legal protections.

  • 116. SoCal_Dave  |  March 26, 2015 at 9:48 pm

    "The compelling interest in preventing discrimination on the basis of sexual orientation is properly documented at the state level in the form of executive orders against employment discrimination, and at county and city levels in the form of laws against employment discrimination."

    That's it? That's all you got? There are some executive orders for a limited set of rights? That's not equality. LGBT persons are NOT protected in Indiana.

    You keep talking about how great it is that RFRAs mean application of strict scrutiny to constitutional rights. But marrying a same-sex partner or just being gay are not considered constitutional rights in Indiana. RFRAs do nothing to help us.

    I know you interpret the RFRAs differently, but 99% of our allies AND 99% of our enemies see them as anti-gay. Even if judges disagree, bigots will feel emboldened by these laws. We will have to sue every step of the way. That's not helpful at all.

  • 117. ianbirmingham  |  March 26, 2015 at 11:42 pm

    Wow, that's some enormous shifting of the goalposts. The discussion here was about whether or not the passage of a state RFRA was the end of the world (as the chorus of Chicken Littles has been falsely claiming). Now you are acting as if the debate is about whether or not this RFRA will be the very opposite: some kind of magic wand that makes all problems instantly disappear.

    There were equality issues in Indiana before the RFRA passed, and the very same equality issues exist afterward.

    Re: Bigots that feel emboldened – they have no valid reason for taking that viewpoint. It's just a transient emotional condition having no lasting significance. Certain politicians have spouted bigotry and gotten applause from bigots, and no doubt there will be a lot more of the same in June when the Supreme Court takes marriage equality nationwide.

  • 118. SoCal_Dave  |  March 27, 2015 at 7:04 am

    No shift – you're the one who was earlier insisting that RFRAs are good for us and we should be happy about them.

    We seem to be going in circles and I don't think we're going to change each other's minds, so I'm out. Kind wishes.

  • 119. ianbirmingham  |  March 27, 2015 at 10:10 am

    It is a good thing from a civil liberties perspective because it elevates the enforcement of a constitutional right to the highest level (strict scrutiny) which is where all constitutional rights should be.

    For sexual orientation and gender identity, certain situations are possible in which strict scrutiny can be acquired via association.

    Hypothetical example: Suppose that a fundamental tenet of the Church of Her Divine Holiness is that feminine characteristics are sacred and holy, and that practictioners of this religion must always display these characteristics. Accordingly, all male members of the religious order are required to cross-dress at all times. Under RFRA, strict scrutiny applies.

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