The Supreme Court's latest grant of emergency relief to the Trump administration illustrates in technicolor the direct (and ugly) consequences of the two different ways it keeps messing up "equity."
Why yes, it’s just like if the government required you to put down there on the passport “born a negro slave.” What’s the harm? Just an historical fact.
Forget about irreparable harm and balancing the equities. I wonder when Steve will start admitting that the SCOTUS-6 granted Trump emergency relief in this case because it advanced their extreme right wing policy preferences supporting an imperial Presidency to get rid of liberal legislation and Christian nationalism with its concomitant hatred of and discrimination against LGBT persons. Look out, Obergefel!
In terms of the SCOTUS legal reasoning in the Dobbs case, constitutional protection for gay marriage and interracial marriage is legally vulnerable, because those rights, like the abortion right, are inferred from the substantive due process clause of the 14th Amendment and in Dobbs, SCOTUS held you can't infer a right from the 14A due process clause unless it is a long-standing right. Obviously, gay and multiracial marriages are fairly new. The SCOTUS-6 are probably extreme right wing enough to get rid of protection for gay marriage, but not interracial marriage. You see, there’s enough law out there and the SCOTUS-6 can manipulate the facts, to they get to whatever result in a case is their preferred policy outcome.
I'm not certain they're even bothering to manipulate the facts anymore, let alone considering them. "Facts, shmacts, here is our ruling. Read it and weep."
Gay marriage (Obergefell v. Hodges) and interracial marriage (e.g., Loving v. Virginia) were deemed to be rights inferred from the Equal Protection clause and the Due Process clause of the Fourteenth Amendment. I don't think the former was relevant to the Dobbs case (I'm not a lawyer).
There's an obvious way in which the abortion issue is distinct from gay or interracial marriage; namely, the latter involve consenting adults (and the state) whereas the former involves the pregnant woman and a "potential life" (to use language from Roe v. Wade), the latter of which cannot possibly be consenting and cannot defend whatever constitutional rights it may have at various stages of the pregnancy. The majority in Roe v. Wade recognized that the state's interest in the potential life becomes compelling at some point in the pregnancy, which is why they essentially allowed states to regulate or ban non-therapeutic abortions after viability.
The liberal point of view seems to have changed dramatically since Roe v. Wade. It's common to claim that the "potential life" has no rights until it's born, or more radically, to claim that there *is* no "potential life", but only biological matter entirely devoid of moral value regardless of the stage of pregnancy.
I just renewed my passport. The application asked for my hair color (despite the color picture). I debated continuing to use "brown" since that's what the last one said, but decided "gray" was more currently accurate. However, by the court's ruling, I suppose I should have put "blonde", since that was my hair color at birth. Their ruling makes as much sense as that. Given that passports are used in part as identification, it is absurd to require data that doesn't describe the current person.
Why what possible harm could befall American citizens holding passports bearing evidence of gender fluidity etc if, for instance, local law requires that they immediately suffer the tortures of the damned. (What could go wrong?)
In contrast, my husband, at 91, went to the DMV for an ID card--not a drivers license. In his prime he was 6'3" but at his last doctor's visit he was 5'11". It took 3 hours to get things straightened out with numerous ways that they checked to make sure that he was who he was. All that so that they could be accurate when giving this ID for how he was as he was presently presenting himself. Would you not think that the passport would be less accurate that his state ID license?
The second sentence in that paragraph is no better than the one you highlighted. What is the purpose of the administration’s policy, beyond a bare desire to harm a politically unpopular group? Tellingly, the majority doesn’t even attempt to say what it might be — because, of course, there is no other purpose for listing a passport holder’s sex at birth. What an utterly shameful and lawless ruling.
Indeed. Intermediate scrutiny is supposed to require an exceedingly persuasive justification before people are classified by sex. What is that exceedingly persuasive justification here? They identify none. And I am aware of none. "It's just the done thing" is not an exceedingly persuasive justification.
I guess we can add US v. Virginia to the growing pile of landmark precedents that have been cast into the oubliette of the MAGA Six's book-burning regime.
Somewhat reminds me of the purposely obtuse argument against recognizing a right to gay marriage... "gays have the same right as everyone else to marry the opposite sex." Hence, what's the problem, there's no discrimination! Works wonderfully here when you can just refuse to acknowledge that trans people exist.
"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." —Anatole France
Because my daughter is transgender, today my heart ached for the lack of humanity she is afforded by these despicable creatures. And I wrote to her: I share this piece on the despicable morally and legally bankrupt SCOTUS6 decision today not to rub salt in the wounds but to underscore for you that there are far more of us than there are of those 6 POS, even if you add in their enablers and supporters. Far more of us here and everywhere. Never forget that. In the long and fruitful and wonderful life you deserve and will lead there will be a day when they will be no more than a dark stain of an asterisk, their names to live forever in infamy and disgrace as an affront to the honorable and good among us.
What vile, hateful, odious “people” these justices are. Also pretty ignorant since there is no sexual identity available at conception. Just some random cells. If they had said “at birth” they would at least have some argument (still not good) for the position. I didn’t think my disgust towards the SCOTUS6 could get any deeper, but they managed to prove me wrong again.
"Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment."
Will passports now say Sex or Sex at Birth? If the former, then it is not a simple statement of fact.
That depends on how you define "sex". For example, at present "gender transitioning" doesn't involve genetic engineering, but only hormonal treatment and surgery.
The Supreme Court ignoring extensive fact finding by lower courts is, to me, the most worrisome, now long-term, trend. Shelby stood out, for me, in this regard, And I fear the upcoming case dealing with Section 2 of the VRA will suffer similarly. To me, this deficiency, in particular, is why support for the court has collapsed - not [as so many defenders of the court contend] the decisions (ends), but the means falling so very far short of the best practices of jurisprudence established over centuries. All judges have to work with are facts and reason. Limiting, if not ignoring any, facts dooms their decisions to not be credible.
Thank you for covering this so thoroughly and so well. This decision has evaded the alt news radar. It's unfortunate because it's not just a transgender issue which by itself is important enough, but it's also a case in point regarding the dysfunction and irresponsibility of the Supreme Court's conservative majority.
I feel like more should be made of John Sauer's role in all of this, in terms of consistently questioning all constitutional interpretation in ways that encourage black-and-white decision-making in all cases the lower courts may visit, not based on merit but on what the president thinks is unfair to him, thus removing the relevance of merit in almost any case that might be related in the future. It's gradually removing merit from the whole scope of the bill of rights, which cannot be justified by floodgates arguments anymore, or ignored. It's completely hamstringing the role of the lower court as a competent fact-finder. Neither is in the service of protecting the Constitution.
Thank you, Steve, for explaining the unfathomable cruelty and indifference of the court to real world repercussions on human beings. Right up there with the “Kavanaugh stop.” I guess the “government” is irreparably harmed if it can’t exercise some more performative cruelty.
Why yes, it’s just like if the government required you to put down there on the passport “born a negro slave.” What’s the harm? Just an historical fact.
Keep the excellent analysis coming. Thank you for these extraordinary efforts.
Forget about irreparable harm and balancing the equities. I wonder when Steve will start admitting that the SCOTUS-6 granted Trump emergency relief in this case because it advanced their extreme right wing policy preferences supporting an imperial Presidency to get rid of liberal legislation and Christian nationalism with its concomitant hatred of and discrimination against LGBT persons. Look out, Obergefel!
I wonder if interracial marriage, which clearly was at one time illegal, will one day be a target. If that happens, I wonder how Thomas would "rule."
In terms of the SCOTUS legal reasoning in the Dobbs case, constitutional protection for gay marriage and interracial marriage is legally vulnerable, because those rights, like the abortion right, are inferred from the substantive due process clause of the 14th Amendment and in Dobbs, SCOTUS held you can't infer a right from the 14A due process clause unless it is a long-standing right. Obviously, gay and multiracial marriages are fairly new. The SCOTUS-6 are probably extreme right wing enough to get rid of protection for gay marriage, but not interracial marriage. You see, there’s enough law out there and the SCOTUS-6 can manipulate the facts, to they get to whatever result in a case is their preferred policy outcome.
Sadly....
I'm not certain they're even bothering to manipulate the facts anymore, let alone considering them. "Facts, shmacts, here is our ruling. Read it and weep."
Gay marriage (Obergefell v. Hodges) and interracial marriage (e.g., Loving v. Virginia) were deemed to be rights inferred from the Equal Protection clause and the Due Process clause of the Fourteenth Amendment. I don't think the former was relevant to the Dobbs case (I'm not a lawyer).
There's an obvious way in which the abortion issue is distinct from gay or interracial marriage; namely, the latter involve consenting adults (and the state) whereas the former involves the pregnant woman and a "potential life" (to use language from Roe v. Wade), the latter of which cannot possibly be consenting and cannot defend whatever constitutional rights it may have at various stages of the pregnancy. The majority in Roe v. Wade recognized that the state's interest in the potential life becomes compelling at some point in the pregnancy, which is why they essentially allowed states to regulate or ban non-therapeutic abortions after viability.
The liberal point of view seems to have changed dramatically since Roe v. Wade. It's common to claim that the "potential life" has no rights until it's born, or more radically, to claim that there *is* no "potential life", but only biological matter entirely devoid of moral value regardless of the stage of pregnancy.
I just renewed my passport. The application asked for my hair color (despite the color picture). I debated continuing to use "brown" since that's what the last one said, but decided "gray" was more currently accurate. However, by the court's ruling, I suppose I should have put "blonde", since that was my hair color at birth. Their ruling makes as much sense as that. Given that passports are used in part as identification, it is absurd to require data that doesn't describe the current person.
Why what possible harm could befall American citizens holding passports bearing evidence of gender fluidity etc if, for instance, local law requires that they immediately suffer the tortures of the damned. (What could go wrong?)
In contrast, my husband, at 91, went to the DMV for an ID card--not a drivers license. In his prime he was 6'3" but at his last doctor's visit he was 5'11". It took 3 hours to get things straightened out with numerous ways that they checked to make sure that he was who he was. All that so that they could be accurate when giving this ID for how he was as he was presently presenting himself. Would you not think that the passport would be less accurate that his state ID license?
I was bald at birth and now have gray and purple hair. Laugh or cry
The second sentence in that paragraph is no better than the one you highlighted. What is the purpose of the administration’s policy, beyond a bare desire to harm a politically unpopular group? Tellingly, the majority doesn’t even attempt to say what it might be — because, of course, there is no other purpose for listing a passport holder’s sex at birth. What an utterly shameful and lawless ruling.
Indeed. Intermediate scrutiny is supposed to require an exceedingly persuasive justification before people are classified by sex. What is that exceedingly persuasive justification here? They identify none. And I am aware of none. "It's just the done thing" is not an exceedingly persuasive justification.
I guess we can add US v. Virginia to the growing pile of landmark precedents that have been cast into the oubliette of the MAGA Six's book-burning regime.
Somewhat reminds me of the purposely obtuse argument against recognizing a right to gay marriage... "gays have the same right as everyone else to marry the opposite sex." Hence, what's the problem, there's no discrimination! Works wonderfully here when you can just refuse to acknowledge that trans people exist.
"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." —Anatole France
Thanks for weighing in quickly on this decision. The equities are way out of balance, again!
Thank you Steve
Because my daughter is transgender, today my heart ached for the lack of humanity she is afforded by these despicable creatures. And I wrote to her: I share this piece on the despicable morally and legally bankrupt SCOTUS6 decision today not to rub salt in the wounds but to underscore for you that there are far more of us than there are of those 6 POS, even if you add in their enablers and supporters. Far more of us here and everywhere. Never forget that. In the long and fruitful and wonderful life you deserve and will lead there will be a day when they will be no more than a dark stain of an asterisk, their names to live forever in infamy and disgrace as an affront to the honorable and good among us.
Go Mom! (I hope your daughter inherited your writing talent.) So sorry this is happening in our country. As MY mother used to say, “It’s a sin.”
What vile, hateful, odious “people” these justices are. Also pretty ignorant since there is no sexual identity available at conception. Just some random cells. If they had said “at birth” they would at least have some argument (still not good) for the position. I didn’t think my disgust towards the SCOTUS6 could get any deeper, but they managed to prove me wrong again.
"Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment."
Will passports now say Sex or Sex at Birth? If the former, then it is not a simple statement of fact.
Excellent point - and shd be dispositive!
That depends on how you define "sex". For example, at present "gender transitioning" doesn't involve genetic engineering, but only hormonal treatment and surgery.
Sex is immutable. It's the same thing for pete's sake.
The Supreme Court ignoring extensive fact finding by lower courts is, to me, the most worrisome, now long-term, trend. Shelby stood out, for me, in this regard, And I fear the upcoming case dealing with Section 2 of the VRA will suffer similarly. To me, this deficiency, in particular, is why support for the court has collapsed - not [as so many defenders of the court contend] the decisions (ends), but the means falling so very far short of the best practices of jurisprudence established over centuries. All judges have to work with are facts and reason. Limiting, if not ignoring any, facts dooms their decisions to not be credible.
Thank you for covering this so thoroughly and so well. This decision has evaded the alt news radar. It's unfortunate because it's not just a transgender issue which by itself is important enough, but it's also a case in point regarding the dysfunction and irresponsibility of the Supreme Court's conservative majority.
I feel like more should be made of John Sauer's role in all of this, in terms of consistently questioning all constitutional interpretation in ways that encourage black-and-white decision-making in all cases the lower courts may visit, not based on merit but on what the president thinks is unfair to him, thus removing the relevance of merit in almost any case that might be related in the future. It's gradually removing merit from the whole scope of the bill of rights, which cannot be justified by floodgates arguments anymore, or ignored. It's completely hamstringing the role of the lower court as a competent fact-finder. Neither is in the service of protecting the Constitution.
Thank you, Steve, for explaining the unfathomable cruelty and indifference of the court to real world repercussions on human beings. Right up there with the “Kavanaugh stop.” I guess the “government” is irreparably harmed if it can’t exercise some more performative cruelty.
Alito. Animus.