Thursday, November 6, 2014
"I Don't Wanna Go"--to the Supremes, I Mean
Today's decision in DeBoer v. Snyder is poorly reasoned, in tension with multiple decisions by other circuits, and slipshod in the extreme. It is also a case that purports to prize the unknown and unknowable "original intent" of the Framers of the Fourteenth Amendment over the Amendment's actual text. The dissent makes these points, and others which I frankly can't be bothered to make. Other than to note that by the reasoning employed by two of the three members of the panel, the Fourteenth Amendment's protections would not extend to any group other than the freed slaves (and maybe their descendants. Maybe.) Michael Kent Curtis demolished that argument back in the 1980s. Hell, even I had a run at it a decade ago, so you can read my views at no tedious length there, and not make me rehash them here.
But for all that the panel decision has created a split between the circuits, I'd seek an en banc review rather by the whole Sixth Circuit rather than a writ of certiorari. Because, honestly? I've lost my faith in the Supreme Court pretty much completely. It's a purely political bench, these days, at least the majority, as witness the Hobby Lobby and Shelby County cases. Yeah, I think Justice Kennedy will probably hang in there with his prior decisions on the line, but why trust these guys (and I do mean the guys) if you don't have to? If en banc review vacates the panel decision, no circuit split exists, and every marriage in every state increases the pressure to maintain the pro-equality status quo.
I know I sound rather cynical, but--seriously; these guys have recently voided the 15th Amendment and raised the statutory free exercise of religion rights of fictional entities over he statutory rights of real, y'know, people.
I'd only go to them as a last resort.