Judge Joe has the right to crow (but he won’t)

Judge Joe Bataillon is a really nice guy. I have objective proof of that assertion.

imagesLisa, my middle daughter, the one in China, told me what a nice man Joe was long before I knew Joe. She knew Judge Joe before I did because Lisa and one of Joe’s daughters, see here, went to Marian High School together and were good friends. Marian is an all-girls Catholic High School with a proud tradition in Omaha.

After I met Joe all those many years ago, I realized what Lisa meant. Joe is truly a good man. He always, and I mean always, seeks to do the right and fair thing even when others (like his church) push hard for Joe to do something different. Joe is indifferent to reversals by the Court of Appeals. His focus is doing what he believes is right.

Yesterday, when the Supreme Court declared that gay people had the Constitutional right to marry, Joe was vindicated. Since 2003, Joe had said essentially the same thing. See Waters v. Ricketts, No. 8:14CV356 (D. Neb., March 2, 2015) (“Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens.”); Citizens for Equal Protection, Inc. v. Bruning, 368 F.Supp.2d 980 (D.Neb.2005) (” Section 29 does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, a right they had before the passage of Section 29. If the purpose, as offered by the proponents of Section 29, were merely to maintain the common-law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. The court concludes that the plaintiffs have established that Section 29 is an unconstitutional bill of attainder.”); Citizens for Equal Protection, Inc. v. Bruning, 290 F. Supp. 2d 1004 (D. Neb. 2003) (denying motion to dismiss and stating, “Section 29 does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain governmental benefits. If the purpose, as offered by the defendants, of Section 29 is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. I conclude that the plaintiffs have met the legal requirements for stating a claim of bill of attainder.”).

Judge Joe has the right to crow. But he won’t because he is also a humble man. Indeed, I feel fortunate to have Judge Joe as a colleague and a friend. By his actions, Judge Bataillon has offered us all a lesson in humanity. By the way, it is not his fault that I am a bad student.

RGK

Alabama probate judges might wish to brush up on federal contempt of court powers

U.S. District Court Judge Callie V.S. “Ginny” Granade on Jan. 23 struck down Alabama’s laws banning same-sex marriage in a ruling in one same-sex couple’s lawsuit in Mobile. The judge ruled that probate judges around the state should begin issuing licenses to same-sex couples on Monday Feb. 9 if an appeals court did not issue a stay. No stay has been issued. Alabama probate judges who refuse to follow the order may well be subject to the power of the federal court to hold them in contempt. For a good article laying out the broad powers of a federal district judge to hold individuals in civil or criminal contempt, here is an extensive explanation of those powers.

Acting like a yokel and mouthing off about ludicrous theories of states’ rights is one thing. Defying a specific order of a federal court is quite another.

UPDATE:

The injunction issued by the district court states:

Accordingly, the court hereby ORDERS that the Alabama Attorney General
is prohibited from enforcing the Alabama laws which prohibit same-sex marriage.
This injunction binds the defendant and all his officers, agents, servants and
employees, and others in active concert or participation with any of them, who
would seek to enforce the marriage laws of Alabama which prohibit same-sex
marriage.

See here for full order. Also here for PDF. ORDER Strawser v. Strange (8)

RGK

The nullification of Supreme Court opinions by the States

You ought to read “Nullification, Now Coming to the Supreme Court? Mike Huckabee suggests that if the justices rule that gay-marriage bans are unconstitutional, states don’t need to listen” by David A. Graham in the Atlantic (January 21, 2015).* I don’t know much, but I do know that former Governor Huckabee is wrong on the law, and, what’s worse, his argument threatens the very foundation of our federal government.

I have a rather simple question for Mr. Huckabee to illustrate the poverty of his nullification argument, and that is:

If the State of New York were to say that the Constitution, the Second Amendment and the Fourteenth Amendment did not mean what District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010) proclaimed, would you agree that the State of New York could as a federal constitutional matter pass a law banning all guns in New York save for those used by the police since New York had no responsibility to follow Heller or McDonald?

I am willing to presume that Mr. Huckabee is a serious and well-intentioned person. That being so, he ought to seriously grapple with the implications of his argument if he wants serious people to give serious consideration to him and to it. At this point, the former Governor is merely throwing rotten meat to a hungry but lunatic fringe.**

RGK

*As always, thanks to Howard Bashman and How Appealing for keeping me informed.

**One would have hoped that Mr. Huckabee, who hails from Arkansas, would have learned from President’s Eisenhower’s decision to enforce Brown v. Board of Education by nationalizing the Guard and sending 1,000 U.S. Army paratroopers from the 101st Airborne Division into Little Rock. See Transcript of Executive Order 10730: Desegregation of Central High School (1957).

Michael J. McShane, United States District Judge, and a beautiful piece of prose

Jeffrey Kiok, a J.D. Candidate at Boston University School of Law, sent me a note. He drew my attention to the concluding part of Judge McShane’s opinion in the Oregon same-sex marriage case.  Jeffrey has my thanks.

The judge concludes his opinion this way:

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and
service to the greater community.
Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.

(Italics supplied by Kopf.)

What a stunning and beautiful piece of prose that obviously came from Judge McShane’s soul. I wish I could write like the judge.* Don’t we all.

RGK

*I express no opinion on the merits. A similar case could easily come before me.  If it did, some folks might be surprised by my views. Others would say I told you so. In any event, the expression of those views is premature.  I will wait until I have an actual case and controversy on this subject, if I ever do, to tell you what I really think.

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