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Commentary

In case you missed it, this Charlotte Observer editorial puts things very succinctly and accurately when it comes to the narrow-minded, wasteful and just plain pigheaded stances of North Carolina’s House Speaker and Senate President Pro Tem on the inevitable and impending  legalization of same-sex marriage in North Carolina:

Write the check, Mr. Tillis.

If you want to continue North Carolina’s defense of its same-sex marriage ban, even after the U.S. Supreme Court implicitly rejected it and other bans Monday, have at it. If you want to keep fighting a fight that for all practical and legal purposes has been decided, go for it.

But pay for it.

Don’t spend North Carolina’s money doing so. Don’t waste tax dollars on outside attorneys that N.C. lawmakers have said you can use to intervene “on behalf of the General Assembly” in legal challenges of state laws.

That’s apparently what you’re planning, given your reaction Monday to the Supreme Court’s decision to let stand lower court rulings striking down same-sex marriage bans. One of those rulings, on a Virginia law, came from the 4th Circuit Court of Appeals. That decision applies to North Carolina, too.

The editorial concludes this way:

In other words, Mr. Tillis: It’s over. You can disagree with the Supreme Court, but you should follow the lead of your attorney general Roy Cooper, who recognizes the legal futility of fighting. Better yet, look to your governor, Pat McCrory, who told reporters Monday that while he didn’t like the justices’ decision, he believes he must respect it.

Any other course is a waste of time. It’s an irresponsible use of state resources. It’s a cynical play for conservative votes in your U.S. Senate race. It’s one last slap at homosexuals in North Carolina.

It’s not, however, something that N.C. taxpayers should sponsor. If you want to keep up the battle, feel free. But write the check yourself. Or maybe your campaign can pick up the tab.

News

Gay marriage 3As reported, the ACLU will immediately file papers asking the federal judge handling same-sex marriage cases here to invalidate the state’s ban and allow marriages to go forward.

For quick context on the the Supreme Court’s inaction today and what it means in North Carolina and elsewhere, see this VOX explainer.

And for more detail, read this post by Lyle Denniston at SCOTUSblog on how the ruling will unravel in affected states and what’s on the horizon that might push the Supreme Court to take a marriage equality case and rule on the issue.

As they say on the live blog, here’s Lyle:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court.   Almost no one had expected that to happen.

It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact.  Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.

News

The U.S. Supreme Court will take a look at seven same-sex marriage petitions for review on September 29 as the justices get ready for the new term, according to Lyle Denniston at SCOTUSblog:

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

As Denniston notes, there’s no telling what if anything they’ll do with the cases, but the Court is moving witih some dispatch, collecting the petitions for consideration early in the term.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.

Commentary

In case you missed it, Judge Richard Posner of the Seventh Circuit Court of Appeals — a conservative Reagan appointee who has frequently vexed progressive lawyers down through the years — said the following yesterday in what Esquire’s Charles Pierce aptly describes as (among other amusing characterizations) a “remarkably plain-spoken” ruling in favor of marriage equality:

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Click here to read the court’s ruling striking down Indiana and Wisconsin’s bans on same-sex marriage. Posner’s quote can be found on pages 19 and 20.

Commentary

Doesn’t it seem that the nation’s progress and momentum in implementing the Affordable Care Act (and, in particular, Medicaid expansion) is starting to resemble the slow but steady (and inevitable) progress on marriage equality?

Talking Points Memo has the story today of the latest conservative state to be talking openly of a plan to expand Medicaid — it’s our neighbor to the west Tennessee:

In a growing trend, Tennessee looks like it will be the next Republican-led state to move toward expanding Medicaid under Obamacare.

Right now, of course, North Carolina is in the “no” camp on both issues. The bet here, however, is that this won’t be the case come the 2016 election.

Click here and here to see two maps that reveal the trends.