Q Toon: Just Deserted

The Supreme Court declined to hear Kim Davis's appeal of a $100,000 judgment against her in suit brought against her by David Moore and David Ermold because she refused to issue them a marriage license.

Davis was elected Rowan County Clerk as a Democrat in 2014, a position whose job description includes the issuing of marriage licenses. When the Supreme Court's Obergefell decision made marriage equality the law of the land in 2015, the Davids applied for a marriage license; but she refused "under God's authority" and told them to go to some other county. She then went further and stopped issuing marriage licenses to all applicants to protest the prospect of having to issue them to same-sex couples.

Two different lawsuits followed: one by Moore and Ermold, who contended that she had violated their constitutional right to marry; and one challenging her refusal to issue any marriage licenses. In the latter case, U.S. District Judge David Bunning ordered Davis to issue licenses to both gay and straight couples. That prompted Moore and Ermold to try once again to obtain a license, but Davis and her deputies rejected that request, as well. Kentucky eventually enacted a law that would accommodate county clerks like Davis by removing their names and signatures from the forms used for marriage licenses. 

Moore and Ermold’s case against Davis went to trial, and a jury awarded each of them $50,000. Davis then appealed to the U.S. Court of Appeals for the 6th Circuit, which upheld that award. It rejected Davis’ argument that requiring her to issue a marriage license to Moore and Ermold would have violated her First Amendment right to freely exercise her religion. In that court’s view, because Davis was acting on behalf of the government when she refused to issue the license, her actions were not protected by the First Amendment. 

In the meantime, Davis switched her party affiliation to Republican as the Grand Old Party rallied around her as a cause celebre. Republican Presidential candidates fought over who got to champion her case loudest (see this cartoon). Rowan County voters, however, threw her out of office in the next election.

Marriage equality advocates were quite worried that the current Supreme Court would seize on Davis's case as a vehicle to overturn Obergefell. The right-wing supermajority on the Court today includes three of the justices who ruled in the minority, two of whom, Thomas and Alito, have been very vocal in their continued opposition to the decision. They have been joined by Trump appointees who have demonstrated that their lip service to the concept of stare decisis ain't worth a 2015 penny.

This Supreme Court has already decreed that wedding cake bakers, florists, and pharmacists are free to discriminate against whomever they dislike, provided they claim that God made them do it. And along comes Davis asking to extend the privilege to public servants.

So virtually everyone was surprised when the Court refused to hear her appeal. One has to assume that the current majority thought that Davis's case made for lousy law.

They're probably waiting for another case better suited to putting an end to same-sex marriage, even when the County Clerk is pleased to assist the happy couple.

This Week's Sneak Peek

In lieu of a snippet from this week's cartoon, here's one from September of 2015, since we were just the other day mentioning Ted Cruz's presidential campaign from that year.

Now he's sporting a scraggly beard, Ambassador Mike Huckabee is hawking sleeping pills on late-night TV, and Kim Davis... well, tune in again later this week.

This Week's Sneak Peek

Our local County Executive died in office a few months ago, so we have a special election coming up on December 19. It's nominally a non-partisan post, so the election couldn't be lumped in with the November 5 national elections; why this election and its November 14 primary were scheduled on Thursdays is beyond me.

I haven't missed an election in four and a half decades, but I'm sorely tempted to skip this one.

Both candidates going into the general election are Republicans, which isn't terribly surprising. The office has been held for many years by men who have endorsed Republicans for other offices and have resisted actions of Democratic governors. There was at least one Democrat vying for the office in the primary, but local Democrats are still shellshocked by the November 5 results.

There had been at least one Democrat running in the primary: Lorenzo Santos, a Black Latino, currently an emergency manager for the county, who had declared candidacy for Congress this year only to withdraw in deference to former Congressman Peter Barca. (Barca lost the November 5 election to incumbent Republican Bryan Steil; our district hasn't elected a Democrat to Congress since unseating Barca — thirty years ago!)

The other losing County Exec candidate was Rev. Melvin Hargrove, Diversity Officer for the county and sometime school board member. He's Black, in case his job title didn't tip you off; I'm not personally aware if he has a party affiliation.

The candidates making it onto the December 19 ballot are both White. Wendy Christensen is County Clerk, in which office she declined to issue a marriage license to my husband and me. It's not as if she were as obstinate as Kim Davis of Kentucky; Christensen turned issuing our marriage license over to someone else in the office. In the years since, I have returned the favor by voting for someone else whenever she's been on the ballot — although that has meant writing in a name on the Democratic blank.

Judging from lawn signs we've seen driving across the county this weekend, I'd say the leading candidate is grocery store owner Ralph Malicki. I presume that he's a Republican, since in the areas I drive frequently, his lawn signs quickly sprouted up where Trump lawn signs used to be. 

The local newspaper and an on-line news aggregator have published, or will soon, the candidates' answers to a list of questions sent to both of them. Malicki hadn't answered RacineCountyEye.com's questionnaire before the primary; perhaps he doesn't feel he needs to let us know what he thinks about the .5% county sales tax, or incentivizing industrial development in current farmland.

What we won't see are any reports of which is the more Trumpy or Bible-Thumpy of the two candidates. (I have noticed that in yards where Trump lawn signs still stand and Trump flags fly, neither Malicki's nor Christensen's signs have joined them.) Absent that information, come December 19, I'm inclined to write in the name of the candidate I voted for in the primary.

Q Toon: All He Wants for Christmas

The Respect for Marriage Act passed the U.S. Senate on Tuesday by a vote of  61 to 36. The Act, protecting same-sex and interracial marriages from being nullified by today's activist Supreme Court, won the support of twelve Republicans and all 49 of the Democrats present. (Sen. Rafael Warnock was home in Georgia campaigning in next week's run-off election. Two Republicans also did not vote.)

The bill now returns to the House, which passed it months ago but will need to reconcile with some differences between their version of the bill and the Senate's.

You may have thought that marriage equality was a settled issue. But you're not Supreme Court Justice Clarence Thomas.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Thomas’s opinion set off alarm bells among proponents of marriage equality, who pointed out that if the Supreme Court were to overturn Obergefell, as it did Roe, then the right to same-sex marriage would similarly fall to the states. Currently 35 states have statutes or constitutional amendments banning same-sex marriage that would go into effect if Obergefell were overturned, according to the Movement Advancement Project, a nonprofit that advocates for LGBTQ equality.

So Senator Tammy Baldwin put together a bill that will require that even if the Supremes reverse Obergefell, if a same-sex or interracial couple were legally married in one state, their marriage doesn't magically disappear any time they happen to be in one of those 35 states.

In order to garner bipartisan support, the Senate version of the bill already had religious liberty guarantees. Baptist homeless shelters can still put lesbian couples back out on the street. Islamic food pantries can still refuse to admit gay couples. Ku Klux Kathedrals can still preach against miscegenation. Heck, if they want to, Catholic adoption agencies can still discriminate against legally married couples when one of them has been divorced.

But that wasn't enough for the 38 Senate Republicans who voted against the bill. Utah's Mike Lee was one of several Republicans arguing that antigay laypersons ought to be able to discriminate against same-sex and interracial couples, too, even in a completely secular capacity.

Who else is going to stand up for the rights of the Kim Davises of the world who think God is telling them to treat someone else's marriage as if it doesn't exist?

Requiring the state to recognize your marriage doesn't mean much if the people in charge can just make a cross with their fingers at you and now pronounce you single and stranger.

Fortunately, Lee's amendment, and the other poison pills were voted down. Yet I suspect they signal to Clarence Thomas and the others of his ilk how to argue that the Respect for Marriage Act is unconstitutional.

Stay tuned.

Q Toon: Clarence Concurs

 

You may have heard that the U.S. Supreme Court completely overturned Roe v. Wade and Casey v. Planned Parenthood last week, thereby turning nearly half a century of women's rights of bodily autonomy over to the politicians in their state capitols.

The majority opinion authored by Justice Samuel Alito promised pinky swear on a stack of Bibles that the Court's decision had no impact on other rulings resting on a constitutional right of privacy earlier Courts had found in the 14th Amendment. 

Justice Clarence Thomas, however, wrote a separate concurring opinion declaring that all bets are off.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on Page 119 of the opinion in Dobbs v. Jackson Women’s Health, also referring to the rulings that legalized [access to contraception,] same-sex relationships and marriage equality, respectively. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Thomas added, “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

As has been pointed out many, many times this week, Loving v. Virginia was conspicuously absent from Justice Thomas's list of demonstrable errors in need of correction. As cavalier as Thomas is in advocating wholesale annulment of same-sex marriages like mine, he is suspiciously circumspect in regard to resurrecting the anti-miscegenation laws that would break up his own. Anti-miscegenation laws that remained on the books in a majority of states well after ratification of the 14th Amendment — for nearly a century in the case of Thomas's home state, Loving's appellee.

Point made, counselor. Move on.

So, what further constitutional provision errors might Thomas have in mind to correct?

Perhaps cases such as Cruzan v. Director Missouri Dept. of Health (1990), which limits the state's right to force you to undergo a medical procedure against your will. Republicans have been all too eager to pass laws forbidding certain medical procedures (e.g., abortion, gender therapy); we'll see how long it takes for them to pass laws requiring certain medical procedures.

Given that they purport that America's gun violence problem is solely a matter of mental illness, my prediction is: sooner than you think.

Thomas, currently the Court's longest-serving Justice, has been itching from Day One to roll back Americans' rights to 1868 in areas ranging from affirmative action to gun regulation to union rights. And very high on his little list is marriage equality.

Back in 2020, Thomas wrote a dissent in the Court's decision not to hear a case brought by Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to same-sex couples.

"[T]his petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix," Thomas wrote. "Until then, Obergefell will continue to have 'ruinous consequences for religious liberty.'"

Joining in and concurring with Justice Thomas? Samuel Anthony Alito.

Q Toon: Article of Faith

Supreme Court Justice Samuel Alito, in a wide-ranging speech to the right-wing Federalist Society, lambasted LGBTQ rights activists for insisting upon infringing upon conservative Christians' right to discriminate against them,

... even suggesting that the pressure Christians face surrounding their religious beliefs is akin to the strictures the U.S. placed on Germany and Japan after World War II.

“Is our country going to follow that course?” Alito asked. “For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and can’t be tolerated, even when there is no evidence that anybody has been harmed. ... The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”

Alito offered as a case in point marriage equality, which he believes victimizes people who believe in opposite-sex marriage supremacy. 

The Gays aren't the only ones assaulting religious liberty, he said. Governmental attempts to stem the spread of COVID-19 also have Alito fuming: “Think of worship services! Churches closed on Easter Sunday, synagogues closed for Passover in Yom Kippur!”

As the present "third wave" of the disease dwarfs the first and second waves in this country, he's not going to like the looks of Christmas this year, either.

But it's not as if the coronavirus is ignoring secular holidays such as Black Friday, New Year's Eve, or Superbowl Sunday, either.

Some legal scholars seemed surprised by Alito's brazenly political speech. In one lawyer's tweet,

“This speech is like I woke up from a vampire dream,” University of Baltimore law professor and former federal prosecutor Kim Wehle wrote. “Unscrupulously biased, political, and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”

I'm not sure why this should come as a shock to anyone. After all, Alito is the Supreme Court Justice caught shaking his head and clearly mouthing "Not true!" at Barack Obama during the then-President's 2010 State of the Union address. (Obama was criticizing the Court's Citizens United ruling.) While that's not quite in the same league as shouting "You lie!" or tearing up one's copy of the speech, the people who did those things were members of Congress — politicians — and I guess we've come to expect that behavior from the House and Senate. The other Justices present during Obama's address sat dispassionately throughout.

In another speech to the Federalist Society four years ago, Alito bemoaned the liberal "campus culture" at some colleges and universities that supposedly stifles conservatives' free speech. Maybe so. Alito might be afraid to speak on liberal campuses of higher learning, but he is right at home bravely speaking to right-wing and libertarian septic think tanks.

None of the views Alito expressed are likely to shock those who have read his legal opinions or other public statements, [University of Massachusetts School of Law professor John T.] Rice said, but their public airing flies in the face of Chief Justice John Roberts’s efforts to keep the court above the political fray.

“Is there a rule that Justice Alito violated? Is there any recourse against him? No,” Rice said. “But was it wise? No.”

Q Toon: Kim's Private Audience

While I was busy at my drawing board with last week's National Coming Out Day cartoon, a story leaked out that was a gay editorial cartoonist's dream topic. So, with apologies to editors of weeklies who would rather have seen this week's cartoon last week and vice versa:

Liberals who have felt that Pope Francis was one of their own were dismayed when rumors began to emerge that Rowan County, Kentucky, clerk Kim Davis had taken time away from obstructing the duties of her office for a "private audience" with Pope Francis during his visit to the U.S. Could it be that this Pope, with all his talk of climate change, economic justice, and "Who am I to judge?" is but a cafeteria liberal?

First reports made it seem that Kim and Francis had met as the leaders of Roman Catholicism and American Apostolicism for intense discussions of strategic policy. We now know, of course, that Kim Davis's private meeting with Pope Francis was only private insofar as it was conducted indoors without a live broadcast feed. She met with the Pope along with a couple dozen other people who each had enough time to exchange "Hello, I'm so glad to meet you" greetings, arranged by some Vatican functionary in charge of deciding who the Pope gets to shake hands with.

We also know that Pope Francis did meet privately with a gay couple, half of whom was a student of his back home in Argentina -- a meeting which someone hastened to publicize after Davis started advertising her meeting of him. (And presumably, that someone was someone other than the functionary who invited Davis to that subsequent meet-and-greet.)

In the end, Kim Davis would probably have been better off wrangling an invitation to sit down with Robert Mugabe.

Q Toon: In Chains for Christ

At long last, it's finally time for my Kim Davis cartoon. Now that every other editorial cartoonist in the country has taken all the good cartoon ideas and has moved on to last night's performance of A Chorus Line, I'm getting around to sifting through the ideas that are left.

At the AAEC convention earlier this month, I was asked several times about the Kim Davis story, comments usually running along the vein of "Boy, you must be having a lot of fun with her!" And while three of my cartoons in July and August were on issues related to local clerks and so-called religious liberty, the cartoons I'd sent to my editors before leaving for the convention were on other topics.

So, while I was away from my drawing board, Davis went into and out of prison, greeted by an adoring throng waving their crosses. Just the sort of crowd someone seeking to be America's Evangelist In Chief would want to get in front of, so there was Arkansas Minister-Governor Mike Huckabee, who vowed to go to jail in Davis's place, now that she was being let out anyway.

Huckabee wasn't the only presidential contender there to bask in the adulation of the theocratic masses, but he was the only one getting onto that stage, if his folks had anything to do about it. And they did.