Somebody's crying for attention.

"The conservative activist who gained fame during the 2012 election for 'unskewing' polls favorable to Barack Obama explained this weekend his newest revelation: the president is 'actually' gay."

What accounts for this sudden and shocking spike in bigotry?

"A year and a half ago, even the president of the United States opposes gay marriage.  President Bill Clinton, a Democrat, signed DOMA into law.  Now all of a sudden, after Obama changes his mind, the whole country supports gay marriage, and those who don't are bigots."

What accounts for this sudden and shocking spike in bigotry?

It depends on what the meaning of bigotry is. (To paraphrase that humanitarian, Bill Clinton.)



But — to quote Marbury v. Madison — as quoted in the DOMA case, United States v. Windsor, "‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))." (I know, who quotes Marbury like that? And what the hell was Zivotofsky v. Clinton? Was there some insuperable urge to bring up Bill Clinton? The Clinton in Zivotofsky was Hillary Clinton, in her Secretary of State role, and this was the case about the State Department's refusal to list Israel as the place of birth on a U.S. passport for a person born in Jerusalem.)

So if it's the Court's duty to define the terms, and opposition to same-sex marriage is defined as nothing but bigotry, then its the Court's decision in Windsor that accounts for the sudden and shocking spike in bigotry.

But let's be clear about a few things.

1. The majority opinion in Windsor did not use the word "bigotry" (or "bigot"). That word appears in Chief Justice Roberts's dissenting opinion: "At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry." Justice Alito also uses the word: "Acceptance of [Windsor's] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."

2.  The majority's expression is "a bare congressional desire to harm a politically unpopular group," which might sound extreme, but it appears in the case law going back to the early 70s, and it's a stock phrase used to characterize the government's interest when the Court is applying minimal scrutiny and therefore needs to say that there is no legitimate governmental interest.

3. What that "bare... desire to harm" language really means is: We don't want to have to heighten scrutiny for this discriminated-against group — they don't want responsibility for what that would mean in future cases — but we do want to be able to strike this down while staying at the minimal scrutiny level.

4. This doctrinal maneuver produces the strange impression that the Court is calling Bill Clinton and the majority of the members of the 104th Congress a bunch of bigots.

5. Now lots of traditionalists have the raw material to whine and cry about being called bigots. I doubt if that will work out very well for them, but they've been stewing in their own juice for a long time, and they're going to find it hard to stop. Unfortunately, same-sex marriage was originally presented as a conservative idea, and traditionalists could have gotten out in front of liberals on this issue if they'd listened to the original argument and predicted the future better, and now they'll have to scramble to improve their image. If they think crying about being called bigots — when, again, the majority didn't even use that word — is going to help, I just have to laugh. You took the opportunity to oppress when it was there, and now that it's gone, you want to say you are oppressed. Man up, losers. You lost. And you deserved to lose. Now, stop acting like losers. If you can. (I bet you can't!)

"Obama’s Pen May Shape Scope of Marriage Ruling."

NYT headline. The article is about what the administration might have to do after the Supreme Court issues its opinion on the Defense of Marriage Act.

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

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

Some federal agencies, like the I.R.S. and the Social Security Administration, make that determination by looking to the state where a couple lives....  Other agencies, like the Defense Department, already base their decision on the location of a couple’s wedding, regardless of where the couple lives now.... There are more than 1,100 places in the federal statutes where rights or benefits are based on a person’s marital status, according to one analysis by advocates for same-sex marriage....

Opponents of same-sex marriage say the legal questions surrounding the definition of marriage were a key argument behind the passage of the act in the first place....

"The heckler wrote: 'After years of these lonely, isolating and dehumanizing experiences...'"

"'... I’ve only recently been able to find the strength to advocate for myself and millions of others.'"

So basically she waited until laws were changed, the political battles were fought, and even TV commercials and marketing ads contain openly gay themes in people presented as normal Americans. Then, when gay marriage and family life is normalizing legally and socially, she comes out of the closet as an aggressive, rude activist.

Sounds like she waited until it was safe, and now she is jumping on the wagon after it's left the barn, trying to be loud and attract attention to her false pretense of bravery.

Top-rated comment on the WaPo column "Why I confronted the first lady."

Ellen Sturtz, the 56-year-old lesbian activist, who heckled Michelle Obama and says she was "taken aback" when Michelle "came right down in my face."

As discussed in this earlier post today, Michelle Obama said "Listen to me or you can take the mic, but I’m leaving," and now Sturtz would like us to know that "she told Obama she was happy to take the microphone to plead her case," which — she claims — "appeared to fluster the first lady."

“I said I want your husband to sign the executive order,” Sturtz said. “Her husband could sign this order tonight and protect 22 percent of the work force in this country.”

Sturtz said she paid $500 to attend the fundraiser, part of a protest cooked up by the gay rights group GetEqual, which gained notice in Obama’s first term for hectoring him during speeches and demanding more action on lesbian, gay, bisexual and transgender issues.

I get a whiff of sexism from the use of the word "fluster." That's a word that people have traditionally used — this is my observation — to portray a woman as incapable of standing her ground and dealing with emotional turmoil.

The (unlinkable) OED defines the transitive verb "to fluster" to mean "To flurry, confuse":

1785   A. Murphy Way to keep Him (new ed.) i. 26   Ma'am, if I was as you, I would not fluster myself about it.
1816   Scott Antiquary III. v. 112   The aged housekeeper was no less flustered and hurried in obeying the numerous..commands of her mistress.

I find it arrogant and annoying for this protester to claim to have flustered the First Lady. The First Lady was angered (and justifiably).

Michelle Obama — unlike Barack — will not be interrupted.

Everyone's paying attention to the way Michelle Obama insisted that everyone pay attention to her or she's leaving. When some lady yelled about gay rights during a fundraising speech, the First Lady said "One of the things I don’t do well is this" and that the heckler could "listen to me or you can take the mic, but I’m leaving" and "You all decide. You have one choice."

The "you" is the heckler when she says "you can take the mic." But the "you" in "You all decide" and "You have one choice" is probably the whole audience. "You all" is a way to indicate the larger group, and she says that after the crowd, we're told, applauds loudly. She doesn't order the throng to throttle the heckler, but she's essentially saying you need to shut this woman up, because obviously, no one there wants Michelle Obama to walk out.

10 days earlier, Barack Obama was famously interrupted, also by a female heckler. He was talking about his military policies, and she was anti-war. Obama — amazing many people — went off script, engaged with her criticism, and even said she — or at least her "voice" — was "worth paying attention to"

Obama departed from his prepared script by responding: "Look at the current situation, where we are force-feeding detainees who are being held on a hunger strike. I'm willing to cut the young lady who interrupted me some slack because it's worth being passionate about. Is this who we are? Is that something our founders foresaw? Is that the America we want to leave our children? Our sense of justice is stronger than that."...

After she was led out of the auditorium, Obama was applauded when he said: "The voice of that woman is worth paying attention to.... Obviously, I do not agree with much of what she said, and obviously she wasn't listening to me in much of what I said. But these are tough issues, and the suggestion that we can gloss over them is wrong."

Obama had his reasons for engaging with his protester. In fact, it could have been planned political theater. It might have made him look good, though it's also easy to mock him for it (or, more aptly, to mock the entire speech for going this way and that, evasively). There's no way the heckler made Michelle Obama look good, especially in contrast to her husband's recent performance. It's all too easy to portray her as arrogant and unconcerned about the interests of everyone who came to the event.

But let's be a little sympathetic. She began with self-deprecation: "One of the things I don’t do well is this." And I hear in that a reference to Barack: He does do these things well. You just saw him make vivid political theater out of engaging with a woman who yelled at him. I can't do that. I can't risk that. 

Even the statements she did make are getting critiqued! She attends these events, gives a dramatic reading of the lines in a competent, actorly fashion, and that's her public role. She can't ad lib policy on the topic of some random person's choice. (In this case, it was some executive order about federal contractors discriminating against gay people.) She only wanted to say: The planners of this event are responsible for keeping perfect decorum, and my appearance is conditional on their meeting this responsibility. They've already failed me, and they need to step up and get it right immediately.

On the spot, she found a way to say that in simple language that did not involve smacking down the heckler or ordering any minions around. She used the language of choice when addressing others and spoke of her own choice as if she were a simple and powerless person who could either continue to speak or stop.

Considering the alternatives, she did pretty well.

"Sorry, gays. Obama prefers Latinos to you."

"But thanks for all the contributions!"

"Obama did not tout himself as the civil rights candidate in either of his two presidential runs."

"But if gay marriage becomes commonplace throughout America by the end of his second term, something that seems entirely possible right now, that could become an important part of his legacy as president."

Writes Perry Bacon Jr., in a piece written a month ago, which I ran across as I was researching the demographics of support for gay marriage. It's often assumed that black people oppose gay marriage. There's a delusion that the GOP has an opportunity to appeal to black people by leveraging this opposition. How much would black people need to loathe gay marriage to abandon the Democratic Party over this issue?

By the way, those who don't like seeing Obama get credit for anything should hope that the Supreme Court — which has 2 pending cases on the subject — finds a constitutional right to marry a person of one's own sex, because if the issue is left to political decisionmaking, we will end up in the same place and same-sex marriage will be inscribed in Obama's legacy.

The jurisdiction questions in the same-sex marriage cases.

Explained in a layperson-friendly way by lawprofs:

Obama thinks it's "important for the court to weigh in" on gay marriage.

"My hope is that the court reaches these issues," he said, alluding to the standing problems in the 2 cases, which could keep the Court from reaching the merits.

The standing problem in the DOMA case resulted from Obama's own decision not to defend the law. I'm sure Obama — as an erstwhile lawprof — knows that the Supreme Court doesn't just "weigh in" on issues. It can only decide real adversarial disputes between parties, and his refusal to defend the federal statute is the basis of the argument that this is not a "case" within the meaning of Article III of the Constitution.

Justice Breyer makes the clearest argument for why there is standing in the DOMA case.

And Chief Justice Roberts takes a different tack. This part is about the bizarre situation in which President Obama and Eric Holder have decided that DOMA is unconstitutional, and they won't defend it in the Supreme Court, but they intend to continue applying it. As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA — "rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice"?

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

"The Obama administration threw its support behind a broad claim for marriage equality on Thursday..."

"... and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage in that state."

The latest brief, filed late Thursday, does not, however, ask the court to declare such bans unconstitutional nationwide; instead, it has focused its argument on Proposition 8...

The identified problem exists only in states that offer domestic partnerships, depriving same-sex couples of the dignity of the term "marriage."

The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

"Obama Will Include Same-Sex Couples In Immigration Plan."

That's your cue, Republicans, to say something stupid. He's roping you in. Come on. You can't resist!

"Today we continue a never-ending journey, to bridge the meaning of [the words of the Declaration of Independence] with the realities of our time."

The words President Obama had just quoted, in his Inaugural Address, were: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."

More from the text of the speech:

For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth.  

God! God is well-represented in this speech. In addition to that "gift from God" (and "their Creator"), there's:

We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own....

We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise.  That is how we will maintain our economic vitality and our national treasure – our forests and waterways; our croplands and snowcapped peaks.  That is how we will preserve our planet, commanded to our care by God....

My fellow Americans, the oath I have sworn before you today, like the one recited by others who serve in this Capitol, was an oath to God and country, not party or faction – and we must faithfully execute that pledge during the duration of our service....

Thank you, God Bless you, and may He forever bless these United States of America.

God is the source of our rights, God makes us stewards of the environment, public servants swear oaths to God, and the blessings of God are requested.

Obama also dealt with the question of federalism, the role of federal power. There are the things we do "together," he said, listing matters that call for uniform national policy: providing for "railroads and highways to speed travel and commerce," "schools and colleges to train our workers, regulation of the "free market... to ensure competition and fair play," "care for the vulnerable," and "protect[ion] ... from life’s worst hazards and misfortune."

But then he gives attention to some conservative ideas, "skepticism of central authority," rejection of "the fiction that all society’s ills can be cured through government alone," "celebration of initiative and enterprise," and "insistence on hard work and personal responsibility."

Turning back to the left, he asserts that "preserving our individual freedoms ultimately requires collective action." Collective action is needed "Now, more than ever," he says: "My fellow Americans, we are made for this moment, and we will seize it – so long as we seize it together." Made for this moment? That's an odd phrase, echoed later with "That is what this moment requires," which comes after vague references to "outworn programs, and the need to "harness new ideas and technology," to fix: 1. "our government," 2. "our tax code," and 3. "our schools." Nothing particularly "this moment" about any of that, so this "moment" theme fizzled. Maybe it was an incorporation by reference to his huge "This is the moment" speech from June 2008.

There's more to the speech — attention to the environment, national security, "our gay brothers and sisters," and so forth, and it finally comes back to the Declaration of Independence material. We need to "lift" our "voices... in defense of our most ancient values and enduring ideals" and "embrace... our lasting birthright... of freedom."

Was Giglio chosen for the inauguration benediction in order to provide cover for Chuck Hagel?

"An evangelical pastor from Atlanta [Rev. Louie Giglio] announced Thursday that he would not give the benediction at President Obama’s swearing-in ceremony after a sermon he gave on homosexuality in the mid-1990s resurfaced earlier this week."

Suspicion: Giglio was chosen with full knowledge of that sermon and the intention that it would "resurface" and that he would then conspicuously withdraw. This would promote Obama's pro-gay stance and take the heat off Chuck Hagel, who's got an anti-gay remark in his record which the Obama people would like to submerge. It was all planned: the desire for Hagel to become Secretary of Defense, the known problem of his anti-gay remark, the desire to perform a conspicuous expiation, the identification of Giglio as a plausible benediction-giver with an anti-gay remark in his history, choosing Giglio, revealing the old Giglio sermon, Giglio bowing out in a tribute to Obama's rejection of homophobia, Hagel saved by the scapegoat.

I'm not saying I believe this is what happened, and I certainly have no inside knowledge. I'm just noticing the correlations and putting together a hypothesis. Please discuss.

You can pull me back from this suspicion if you make a great case for why else Giglio would have been chosen for this honor. He's a white male, by the way.