# Arkansas gets schooled on SSM **URL:** \ **Category:** Great Debates\ **Created:** [June 27, 2017, 2:47am UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965 "2017-06-27T02:47:54Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 27, 2017, 11:45pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/21 "2017-06-27T23:45:21Z")
Did you notice that you didn’t address the substance of Gorsuch’s dissent? I agree with the per curium decision, but that doesn’t mean that Gorsuch is a lunatic. Your characterizations here (extremists, utterly failed, civilized democracies, bible thumping lunatics) makes me think actual discussion isn’t of interest to you. Gorsuch’s dissent had to do with granting summary reversal, not the underlying case itself. For all we know he may have voted with the majority had the case gone to trial. Thinking that this is some ominous sign about the rights of the gay community is premature. Summary reversals while growing in frequency of late, are still not common and I get the impression that the procedural form is very important to Gorsuch. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 27, 2017, 11:45pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/22 "2017-06-27T23:45:55Z")
> [@Bone](#): > > In looking at the fact pattern, it seems that precluding listing the same sex spouse on the birth certificate is a reasonable extension of Obergfell, but not that it is obviously part of the holding that its conclusion is a given. That the law contemplates the non-biological opposite sex husband to be put on the birth certificate but not the same sex non-biological wife is what dooms the law. There is also the fact that the law itself wasn’t challenged, so summary judgment ruling against an unchallenged law can be seen as an overreach. Don’t be confused by Gorsuch’s obfuscation. The law being challenged (20-18-401) requires a husband to be listed on a child’s birth certificate when the wife gives birth by artificial insemination (with some exceptions, amounting to when all participants get together and jointly decide to list the biological father, instead). The litigants challenged this law when they were confronted with the fact that the spouse of the mother (who was a “wife”, not a “husband”) was denied the right afforded by the law to be on the birth certificate. (i.e. the problem would not exist if the law had said “spouse” in place of “husband”). Gorsuch addresses this issue by instead citing to another Arkansas statute (9-10-201) which says that the law presumes that the husband of a woman who gives birth to a child by artificial insemination is the father. Basically, it is on the basis of this legal presumption (which is mandated by statute even though it is an obvious fiction) that Gorsuch says that the law being challenged justifies listing the non-biological husband as father. So, basically, Gorsuch is saying that the litigants didn’t go after the proper law. Nothing in the challenged statute is problematic, he reasons, because it is buoyed by another statute that provides sufficient justification. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [June 28, 2017, 12:23am UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/23 "2017-06-28T00:23:06Z")
> [@Bone](#): > > Did you notice that you didn’t address the substance of Gorsuch’s dissent? I agree with the per curium decision, but that doesn’t mean that Gorsuch is a lunatic. Your characterizations here (extremists, utterly failed, civilized democracies, bible thumping lunatics) makes me think actual discussion isn’t of interest to you. > > Gorsuch’s dissent had to do with granting summary reversal, not the underlying case itself. For all we know he may have voted with the majority had the case gone to trial. Thinking that this is some ominous sign about the rights of the gay community is premature. Summary reversals while growing in frequency of late, are still not common and I get the impression that the procedural form is very important to Gorsuch. Not to be “that guy” but isn’t this the opposite level of benefit of the doubt you had with Garland WRT his stance on gun control? Iirc, you said he was untrustworthy on guns just because he voted to rehear a case on procedural grounds and you assumed he was looking for another bite of the apple? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 28, 2017, 2:13am UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/24 "2017-06-28T02:13:07Z")
Slightly different. Garlands vote for en banc, if I recall correctly in the DC case, wasn’t paired with an opinion to read about his thought process. An en banc vote is a different animal than a dissent from a SCOTUS judge. I do see the similarities though, in reading motivations. For Garland, my opposition was based on the available evidence thin as it was. For Gorsuch’s dissent here, his reasoning is laid out so no need to infer. It is plainly stated as based on opposition to the summary reversal. Now, if someone were to say, based on the totality of the evidence (republican nominee, dissent here, etc.) that they believe his dissent signaled an opposition to expanding Obgerfell to its logical conclusions, okay I would disagree but think that’s not crazy town. To say that this dissent means he’s a lunatic, well, no. I think the plain language of the dissent shows what it is based on, and is consistent with Gorsuch’s narrative that he is enamored with process. That’s why I think it’s a form over substance position. I personally am heavily in favor of gay rights so my hope is that with Obgerfell it is settled, though recently, law. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 28, 2017, 2:57am UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/25 "2017-06-28T02:57:23Z")
> [@Bone](#): > > For Gorsuch’s dissent here, his reasoning is laid out so no need to infer. It is plainly stated as based on opposition to the summary reversal. Now, if someone were to say, based on the totality of the evidence (republican nominee, dissent here, etc.) that they believe his dissent signaled an opposition to expanding Obgerfell to its logical conclusions, okay I would disagree but think that’s not crazy town. To say that this dissent means he’s a lunatic, well, no. > > I think the plain language of the dissent shows what it is based on, and is consistent with Gorsuch’s narrative that he is enamored with process. That’s why I think it’s a form over substance position. I personally am heavily in favor of gay rights so my hope is that with Obgerfell it is settled, though recently, law. There was nothing wrong with the process. A woman was denied the right to be listed as the mother on her child’s birth certificate because of a law that required the (non existent) husband’s name to appear. So she challenged that law. It was given summary review because there were no facts in dispute. The biological mother delivered via surrogacy. Her wife was denied appearing on the birth certificate. The law would have required her name if she had been a husband, instead. Nobody disagrees with these facts, so why do we need a trial? Moreover, why should the litigants have challenged a law that presumes that a husband is the parent of his wife’s children? That’s not something they wanted to change. Gorsuch is reaching for opposition instead of simply addressing the facts and law actually before the court. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [June 28, 2017, 1:01pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/26 "2017-06-28T13:01:47Z")
> [@Bone](#): > > Not necessarily - existing law can be challenged and overturned at the lowest level and then it’s done. Only if appealed and it goes through the process would it make it to SCOTUS. **Laws on the books that basically do not recognize same sex marriages would be easily overturned.** But it is true that even after Obgerfell the offending laws would still be on the books - and they would need to be repealed, or litigated for their removal. It wouldn’t be automatic. A lack of enforcement would probably create standing hurdles that could be overcome with institutional plaintiffs as well, among other methods. (Bolding mine) I feel like we must be talking past each other. This _was_ a law on the books that did not recognize SSM and should have been easily overturned. However, here it was at the Supreme Court. The majority likely said, “This law doesn’t recognize SSM and should be easily overturned. We have no idea why it got this far, case dismissed, the parents win.” Then, Gorsuch said, “hey, uh, they didn’t challenge the right law, so why the dismissal?” But it seems obvious to me (non-lawyer, non-SCOTUS justice, of course) that Obergefell would make it clear that, of course the legal spouse would get her name on the BC when there’s a sperm donor, just like a husband would. Why require a full hearing at SCOTUS? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [June 28, 2017, 2:14pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/27 "2017-06-28T14:14:38Z")
> [@Moriarty](#): > > Don’t be confused by Gorsuch’s obfuscation. > > The law being challenged (20-18-401) requires a husband to be listed on a child’s birth certificate when the wife gives birth by artificial insemination (with some exceptions, amounting to when all participants get together and jointly decide to list the biological father, instead). The litigants challenged this law when they were confronted with the fact that the spouse of the mother (who was a “wife”, not a “husband”) was denied the right afforded by the law to be on the birth certificate. (i.e. the problem would not exist if the law had said “spouse” in place of “husband”). > > Gorsuch addresses this issue by instead citing to another Arkansas statute (9-10-201) which says that the law presumes that the husband of a woman who gives birth to a child by artificial insemination is the father. > > Basically, it is on the basis of this legal presumption (which is mandated by statute even though it is an obvious fiction) that Gorsuch says that the law being challenged justifies listing the non-biological husband as father. So, basically, Gorsuch is saying that the litigants didn’t go after the proper law. Nothing in the challenged statute is problematic, he reasons, because it is buoyed by another statute that provides sufficient justification. I’m not sure your characterization of [20-18-401](http://law.justia.com/codes/arkansas/2016/title-20/subtitle-2/chapter-18/subchapter-4/section-20-18-401/) is entirely correct. Section 401 provides (in relevant part) that “If the mother was married at the time of either conception or birth or between conception and birth the name of the husband shall be entered on the certificate as the father of the child” subject to a variety of exceptions dealing generally with biological paternity. 401 appears to be silent with respect to artificial insemination, so I’m not sure I understand your characterization of the law being challenged. The Arkansas Supreme Court looked at this provision and concluded that because the exceptions dealt with biological paternity, this was a permissible registration system that was not applicable to same-sex couples. The federal supreme disagreed, but not (I think) with the assumption that a biological-based certificate regime would be permissible, but rather with the conclusion that this was such a regime. Artificial insemination appears to be addressed by [9-10-201](http://law.justia.com/codes/arkansas/2010/title-9/subtitle-2/chapter-10/subchapter-2/9-10-201), which does provide that “[a] child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman’s husband”. The Arkansas Supreme Court suggested that this provision was constitutionally suspect (and I think it pretty clearly is), but did not address it because it was not presented to the court below. Which is a well-established (if inconsistently observed) appellate rule. I don’t really have an opinion on the underlying issue. I suppose it depends on what the purpose of birth certificates is. But I think that it is pretty clear that the federal Supreme Court struck down a statute that was not being challenged and I don’t think it was “obfuscation” to point that out. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 28, 2017, 3:32pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/28 "2017-06-28T15:32:04Z")
> [@Falchion](#): > > I’m not sure your characterization of [20-18-401](http://law.justia.com/codes/arkansas/2016/title-20/subtitle-2/chapter-18/subchapter-4/section-20-18-401/) is entirely correct. Section 401 provides (in relevant part) that “If the mother was married at the time of either conception or birth or between conception and birth the name of the husband shall be entered on the certificate as the father of the child” subject to a variety of exceptions dealing generally with biological paternity. 401 appears to be silent with respect to artificial insemination, so I’m not sure I understand your characterization of the law being challenged. Although it is silent with respect to artificial insemination, the law applies to cases of artificial insemination. Otherwise, there is no need to apply the legal fiction that the husband is the father of the child. But the text creates a problem for this couple - although “married” (meaning they are subject to this law), there is no “husband” to list on the birth certificate. So they challenged the law. > [@](#): > > The Arkansas Supreme Court looked at this provision and concluded that because the exceptions dealt with biological paternity, this was a permissible registration system that was not applicable to same-sex couples. The federal supreme disagreed, but not (I think) with the assumption that a biological-based certificate regime would be permissible, but rather with the conclusion that this was such a regime. > > Artificial insemination appears to be addressed by [9-10-201](http://law.justia.com/codes/arkansas/2010/title-9/subtitle-2/chapter-10/subchapter-2/9-10-201), which does provide that “[a] child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman’s husband”. The Arkansas Supreme Court suggested that this provision was constitutionally suspect (and I think it pretty clearly is), but did not address it because it was not presented to the court below. Which is a well-established (if inconsistently observed) appellate rule. > > I don’t really have an opinion on the underlying issue. I suppose it depends on what the purpose of birth certificates is. But I think that it is pretty clear that the federal Supreme Court struck down a statute that was not being challenged and I don’t think it was “obfuscation” to point that out. I’m not sure that I agree that the Supremes struck down a statute that was not being challenged. Rather, I think Gorsuch was saying that the law that was not being challenged was the more relevant law. Thus, he avoided the issue actually before the court, which was a law that fatally presumed that a married woman who gives birth has a husband. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [June 28, 2017, 4:03pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/29 "2017-06-28T16:03:33Z")
> [@Moriarty](#): > > Although it is silent with respect to artificial insemination, the law applies to cases of artificial insemination. Otherwise, there is no need to apply the legal fiction that the husband is the father of the child. But the text creates a problem for this couple - although “married” (meaning they are subject to this law), there is no “husband” to list on the birth certificate. So they challenged the law. I don’t think it does apply to artificial insemination; I think that’s governed by the statute on birth certificates in cases of artificial insemination. Section 401 sets forth a straightforward regime: A woman who gives birth is the mother. The father is determined by subsection (f). (F)(1) provides that a woman’s husband is presumptively the biological father of her children and, as a default, is so listed on the birth certificate. Then it sets forward two ways to prove alternative paternity: a court order or the agreement of the mother, husband, and father. If alternative paternity is proven, then the biological father is listed as the father. With respect to a mother married to a woman, you don’t get to (f)(1), because we know that the woman’s wife is not the father. So I don’t think it creates a problem at all. You move directly to (f)(4): “If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.” A straightforward application of Section 401 leads to a pretty clear result in these cases: the woman who gives birth is the mother and there is no father listed. The “problem” for these couples is that they want the non-mother wife listed as a parent in lieu of the father. A bigger problem is created (quite apart from same-sex marriage) in the case of artificial insemination (and surrogacy), where the mother _isn’t_ the “woman who gives birth to the child” and the father _isn’t_ the man who provided the sperm (or, more accurately, we want to define the terms differently in these situations). So there’s a new statute that deals with those situation – that’s 201. That’s also where you run into a clear equal protection problem for same-sex couples. > [@](#): > > I’m not sure that I agree that the Supremes struck down a statute that was not being challenged. Rather, I think Gorsuch was saying that the law that was not being challenged was the more relevant law. Thus, he avoided the issue actually before the court, which was a law that fatally presumed that a married woman who gives birth has a husband. The constitutionally offensive statute is the one that provides that a woman’s husband is the “parent” of child born of artificial insemination, but does not allow the same for a woman’s wife. That’s 201, not 401. The Court doesn’t say that a biological registration system is impermissible. They say that, under the statute, “when an opposite-sex couple conceives a child by way of anonymous sperm donation—just as the petitioners did here—state law requires the placement of the birth mother’s husband on the child’s birth certificate.” And that, under such a regime, “Arkansas may not, consistent with _Obergefell_, deny married same-sex couples that recognition.” I think that’s pretty clearly striking down the language of 201. Despite claiming to reverse the Arkansas Supreme Court’s ruling on 401, there’s nothing there that seems to apply to 401. Here’s the next case: a woman married to another woman has an affair with a man and gets pregnant. Under 401, if she were married to a man, the husband would be listed as the father and he has no way to unilaterally disavow paternity unless he seeks a court order. Does equal protection require that this woman’s wife be listed as the other parent under the same requirements? ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [June 28, 2017, 4:30pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/30 "2017-06-28T16:30:34Z")
> [@Bone](#): > > For Gorsuch’s dissent here, his reasoning is laid out so no need to infer. It is plainly stated as based on opposition to the summary reversal. Now, if someone were to say, based on the totality of the evidence (republican nominee, dissent here, etc.) that they believe his dissent signaled an opposition to expanding Obgerfell to its logical conclusions, okay I would disagree but think that’s not crazy town. To say that this dissent means he’s a lunatic, well, no. For the record, I use terms like “lunatic” as a euphemism for the far right, especially in reference to many of their positions on social issues. You don’t have to take it literally. The essence of the argument here is not whether Gorsuch has laid out a process-based reasoning for his position, because clearly he has. So did Scalia and others – frequently – to justify predictable support of conservative positions on contentious issues. The question is whether this is just a smokescreen for a predetermined stance on the whole LGBT issue; in short, how credible is the assertion that Gorsuch is impartial on this issue and merely feels strongly about procedure? In practical terms, the question is how is Gorsuch likely to vote on LGBT issues in the future. Is he, like Scalia before him and his current compatriots on the bench, likely to continually find reasons to smack down LGBT rights at every possible opportunity? You articulated this question yourself when you said [here](http://boards.straightdope.com/sdmb/showpost.php?p=20308681&postcount=17) that this dissent “says nothing about how he would rule if the case were argued before the court”, and reiterated the same [here](http://boards.straightdope.com/sdmb/showpost.php?p=20308974&postcount=21): Gorsuch’s dissent had to do with granting summary reversal, not the underlying case itself. For all we know he may have voted with the majority had the case gone to trial. Thinking that this is some ominous sign about the rights of the gay community is premature. That is certainly the question, and your view is most charitable, but my question is, is this charitable view credible and realistic? I suggest that it’s not credible at all. What does it tell you that Chief Justice Roberts dissented on _Obergefell_ but, that case having been settled, sided with the majority on this ruling which cites _Obergefell_ as its basis? And then there’s this: … his recent stances on the travel ban, LGBT parents’ rights, and gun laws say a lot about what’s to come. In his first few months, Gorsuch has sided four times with justice Clarence Thomas, thought to be the most conservative judge on the bench. “[Today] we got a very good indication that [Gorsuch] will be most like Justice Scalia, and often voting with Justices Thomas and Alito, making Justice Gorsuch one of the most, or most, conservative Justices,” Rick Hasen, a professor of law and political science at UC Irvine, wrote at Election Law Blog on June 26. … When Gorsuch was nominated, Lambda Legal, an organization that works to protect the civil rights of the LGBT and HIV-positive communities, issued its first ever opposition to a SCOTUS nomination before a confirmation hearing. “[His] extreme record suggests he could roll back the tremendous progress our country has made towards recognizing the fundamental rights LGBT people and everyone living with HIV,” Lambda Legal CEO Rachel Tiven said at the time. > **[Neil Gorsuch's early opinions reveal a deeply conservative Supreme Court justice](https://qz.com/1015025/neil-gorsuchs-early-opinions-reveal-a-deeply-conservative-supreme-court-justice)** > > Gorsuch's stances on the travel ban, LGBT parents' rights, and gun laws say a lot about what’s to come. … **Gorsuch’s actual voting behavior suggests that he is to the right of both Alito and Thomas, and by a substantial margin.** The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between Justice Sotomayor and Justice Kennedy during the same time period. In fact, our results suggest that Gorsuch and Justice Scalia would be as far apart as Justices Breyer and Chief Justice Roberts. … Our analysis suggests that, if confirmed, **Gorsuch might be the most conservative justice on the Supreme Court.** > **[Analysis | Neil Gorsuch could be the most conservative justice on the Supreme...](https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/)** > > More conservative than Scalia and Thomas, even. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 28, 2017, 5:42pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/31 "2017-06-28T17:42:59Z")
> [@RitterSport](#): > > Can you explain his reasoning in the dissent? It seems to obviously wrong to me, since this case did concern a sperm donor and the parents can name the husband as the other parent, so why doesn’t that work here? Was it just that he thought a dismissal was simply premature and would rather have heard arguments? > > I assume he’s a smart guy that I would just disagree with, and I’m not a lawyer, but his dissent seemed rambling and just wrong to me. “Homosexuals have for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with heterosexuals, either in social or political relations; and so far inferior, that they had no rights which heterosexuals are bound to respect.” ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [June 28, 2017, 5:54pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/32 "2017-06-28T17:54:19Z")
> [@Falchion](#): > > Here’s the next case: a woman married to another woman has an affair with a man and gets pregnant. Under 401, if she were married to a man, the husband would be listed as the father and he has no way to unilaterally disavow paternity unless he seeks a court order. Does equal protection require that this woman’s wife be listed as the other parent under the same requirements? I believe it does. The whole point of this law is to ensure that children born during a marriage are not considered bastards (and was originally written in the 1940s, a time when being a bastard was a legitimately problematic thing. Just speculating, but it might have also been a post-WWII concern, what with husbands coming home from the war and returning to their long abandoned wives). It is meant to apply to your hypothetical - if a woman who is married has an affair, her spouse should be legally the parent, even if we all know that it isn’t really true, so as to allow the married couple to save face and to rescue the child from the scourge his procreation has created. Now, to the extent that this creates an absurd situation, I would simply posit that it has always been so, which perhaps justifies not passing such morality regulations in the first place. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 28, 2017, 6:54pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/33 "2017-06-28T18:54:35Z")
> [@wolfpup](#): > > For the record, I use terms like “lunatic” as a euphemism for the far right, especially in reference to many of their positions on social issues. You don’t have to take it literally. I think hyperbole has a place in persuasive writing, but when overused it weakens its impact and seems less like an exaggeration and more like an accurate reflection of underlying beliefs. > [@](#): > > That is certainly the question, and your view is most charitable, but my question is, is this charitable view credible and realistic? I suggest that it’s not credible at all. What does it tell you that Chief Justice Roberts dissented on _Obergefell_ but, that case having been settled, sided with the majority on this ruling which cites _Obergefell_ as its basis? And then there’s this: It doesn’t tell me anything really. I note that under the Roberts court the use of summary reversals has risen, so I would tentatively say that this may speak to his desire for consensus. Perhaps he thinks the standard for granting summary reversal should be lowered and that he could see that while the petitioners didn’t attack the correct law, their position had merit so why go through the rigmarole of having to amend their complaint, argue the case before the court, etc. and just be done with it. But that’s just my conjecture. > [@](#): > > … Our analysis suggests that, if confirmed, **Gorsuch might be the most conservative justice on the Supreme Court.** > [https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/](https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/) We talked about this analysis in another thread which I don’t think you participated in. Here is what I said then: > [@Gorsuch confirmation hearing](https://boards.straightdope.com/t/gorsuch-confirmation-hearing/782653/327): > > I will gladly acknowledge that Gorsuch is what is typically described as conservative in his judicial philosophy. That part isn’t in question so the pronouncement that he is conservative is not really surprising or controversial. But is he more conservative than Scalia? Well I think that will depend on how it’s measured. In looking at the actual research [here is how they describe the methodology](https://poseidon01.ssrn.com/delivery.php?ID=463070022024115107067081072066084109057049057076086029076124070089067076006025124093117033048052107045040092015030109026003100021041003015023095115101069106112027057034084067067065118069119093084022126090086069094100003020079001100103077016111029101&EXT=pdf): > > > [@](#): > > > > Taking a different approach to estimate Gorsuch’s ideology and where he will fit on the Court, we apply a standard one-dimensional item response theory model. This approach estimates the ideal point of Gorsuch in the same policy space as his would-be colleagues on the Supreme Court. To do so, we started by gathering all dissenting opinions filed on the Tenth Circuit from January 1, 2006 through February 4, 2017. We used Lexis-Nexis Academic Universe to obtain a total of 345 opinions. We then simply coded these opinions for whether a judge voted with the majority or with the dissent. Votes that were “mixed” (e.g., dissent in part) were coded as dissents, as were dissents from the denial of en banc rehearing. This yielded a total of 1246 judge votes, 86 of which involved Gorsuch. > > > > … > > > > In a perfect world, we would have instances where the justices of the Supreme Court sat alongside judges from the Tenth Circuit and decided the same case. Alas, such data do not exist. Nevertheless, we do observe cases where the Supreme Court reviewed decisions by the Tenth Circuit. The High Court reviewed 26 such cases between 2007 and 2016. We use these observations as though they were the justices voting on the same panel as the Tenth Circuit. > > The research cited does show that Gorsuch as measured would be more conservative than Scalia, however I’m not sure how meaningful that is. It certainly isn’t disqualifying, IMO, as you indicated previously. A few things stand out to me about the methodology though: Why just the dissents? Is it fair to base their assessment on 26 overlapping cases? Is it reasonable to do this type of analysis when the two courts are faced with different circumstance, different negotiations, and serving a different purpose? This methodology would be more robust if it was conducted for other jurists where the results are more known - say for the current members of SCOTUS when they served in an appellate role. > > So two things. First, I grant that Gorsuch is conservative - whether the magnitude of his conservatism is greater than Scalia I’m not convinced, but I am convinced it doesn’t matter. … To be clear, I’m not saying that Gorsuch would have voted with the majority had the case gone to trial. I am saying his dissent is limited to the issue of granting summary reversal. Interpreting beyond that is premature, IMO. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [June 28, 2017, 9:26pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/34 "2017-06-28T21:26:09Z")
> [@Bone](#): > > To be clear, I’m not saying that Gorsuch would have voted with the majority had the case gone to trial. I am saying his dissent is limited to the issue of granting summary reversal. Interpreting beyond that is premature, IMO. This is where we disagree. It’s not premature because there is ample evidence about Gorsuch’s values and outlook, as noted in my previous post. Yes, it can be labeled as conjecture. But it’s conjecture that virtually every legal analyst is onside with; conservative analysts in triumph, progressives in trepidation. They could all be wrong about him, but if they are, then so were all the right-wing extremists who urged that he be appointed, because this is just what they were looking for, not an impartial moderate or a pedantic stickler for procedure. I noticed that in my previous post I rambled on for many paragraphs but forgot to address one simple point I wanted to make, in response to this remark of yours that I had quoted: Now, if someone were to say, based on the totality of the evidence (republican nominee, dissent here, etc.) that they believe his dissent signaled an opposition to expanding Obgerfell to its logical conclusions, okay I would disagree but think that’s not crazy town. To address this now and clarify my position, my colorful language aside, this is in fact exactly what I’m saying, no more and no less: **Gorsuch’s dissent signaled an opposition to expanding _Obergefell_ to its logical conclusions**. I don’t know how one could reach any other conclusion given the evidence. A different way of saying the same thing is that Gorsuch is intent on using every possible avenue of reasoning and interpretation to minimize the scope and impact of _Obergefell_. If Gorsuch’s future rulings prove me wrong I’ll happily acknowledge it, but my prediction is that his rulings on human rights relative to the LGBT community and many other social issues will be squarely in the regressive far-right camp. There’s a damn good reason that the gang of hateful bigots that call themselves the “Family Research Council” so enthusiastically applauded his appointment and confirmation. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 28, 2017, 9:57pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/35 "2017-06-28T21:57:44Z")
> [@wolfpup](#): > > This is where we disagree. It’s not premature because there is ample evidence about Gorsuch’s values and outlook, as noted in my previous post. Yes, it can be labeled as conjecture. But it’s conjecture that virtually every legal analyst is onside with; conservative analysts in triumph, progressives in trepidation. They could all be wrong about him, but if they are, then so were all the right-wing extremists who urged that he be appointed, because this is just what they were looking for, not an impartial moderate or a pedantic stickler for procedure. Not all progressives and leftists opposed Gorsuch. By my reading, there were plenty in the judicial field who supported Gorsuch as a jurist. But yes, we shall see. If he ends up being more libertarian conservative I’d be thrilled. If he’s more Family Research Council conservative that would be not so good. > [@](#): > > I noticed that in my previous post I rambled on for many paragraphs but forgot to address one simple point I wanted to make, in response to this remark of yours that I had quoted: > Now, if someone were to say, based on the totality of the evidence (republican nominee, dissent here, etc.) that they believe his dissent signaled an opposition to expanding Obgerfell to its logical conclusions, okay I would disagree but think that’s not crazy town. > To address this now and clarify my position, my colorful language aside, this is in fact exactly what I’m saying, no more and no less: **Gorsuch’s dissent signaled an opposition to expanding _Obergefell_ to its logical conclusions**. I don’t know how one could reach any other conclusion given the evidence. A different way of saying the same thing is that Gorsuch is intent on using every possible avenue of reasoning and interpretation to minimize the scope and impact of _Obergefell_. > > If Gorsuch’s future rulings prove me wrong I’ll happily acknowledge it, but my prediction is that his rulings on human rights relative to the LGBT community and many other social issues will be squarely in the regressive far-right camp. There’s a damn good reason that the gang of hateful bigots that call themselves the “Family Research Council” so enthusiastically applauded his appointment and confirmation. Well, that’s a much more measured position than calling him a lunatic. He may be, but I see no evidence for it. We shall see at least by next year how the cake making case is ruled upon. If Gorsuch and/or the court rule that cake making is a form of artistic expression that cannot be compelled and the cake maker prevails, I think you would see that as further support for your position whereas I would see that as a first amendment issue. Admittedly I haven’t followed specific LGBT cases in the pipeline, but I don’t think the cake baking case is a slam dunk indicator one way or the other. A cleaner case would have to be raised to suss out Gorsuch’s position on LGBT rights. ---
**Author:** ![Apollyon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/apollyon/32/4238_2.png) [@Apollyon](https://boards.straightdope.com/u/Apollyon)\ **Post date:** [June 30, 2017, 11:25am UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/36 "2017-06-30T11:25:36Z")
> [@Falchion](#): > > Here’s the next case: a woman married to another woman has an affair with a man and gets pregnant. Under 401, if she were married to a man, the husband would be listed as the father and he has no way to unilaterally disavow paternity unless he seeks a court order. Does equal protection require that this woman’s wife be listed as the other parent under the same requirements? Interesting question. How would it be handled today if the woman were married to a man who had suffered say, a catastrophic testicular combine harvester accident? Would he still be the default father on the birth certificate? What if the woman were married to a man who was previously female, but who has undergone sex-reassignment surgery and had his birth certificate amended? (I believe this is possible in Arkansas, but the info came from wiki so…) He is presumably considered the husband; is he the default father? ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [June 30, 2017, 1:47pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/37 "2017-06-30T13:47:14Z")
Possibly relevant: [Gorsuch’s first anti-gay dissent has a huge factual error.](http://www.slate.com/blogs/outward/2017/06/28/gorsuch_s_first_anti_gay_dissent_has_a_huge_factual_error.html) > [@](#): > > In his dissent, Gorsuch made two counterarguments, neither of which is even remotely plausible. > > First, he wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place. > > […] > > Second, Gorsuch wrote that the plaintiffs’ challenge was incorrect: He insisted they should have challenged the “artificial insemination statute,” not the state policy refusing to list same-sex parents on birth certificates. This reasoning makes no sense. The plaintiffs cited the artificial insemination statute only to prove that Arkansas already listed non-biological parents on birth certificates. They had no desire to overturn it; they merely used it as evidence that Arkansas was not extending a key marital benefit to same-sex couples. Did Gorsuch simply not understand this extremely basic aspect of the case? Color me unimpressed. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 30, 2017, 1:55pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/38 "2017-06-30T13:55:40Z")
That Slate writer did an awful job in that piece. He’s wrong about both of his arguments, which you can see for yourself by just reading the briefs in the case. Arkansas had indeed already granted both couples birth certificates with both mothers and conceded that the artificial insemination statute was required by Obergefell to apply to same-sex couples. The dispute, in Gorsuch’s mind, was whether the separate birth certificate law had a potential rational basis (biological relationships) and whether, if the challenge to that possible rational basis was the listing of non-biological opposite sex parents, the plaintiff was then obligated to challenge the statutes that lead to that result (like the artificial insemination statute, which was not challenged). I think Gorsuch is wrong on both counts of his actual argument, but that Slate piece is an ignorant hit job that is emblematic of progressive media becoming more and more Fox News-ified. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 30, 2017, 3:14pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/39 "2017-06-30T15:14:23Z")
The posture of the case is odd, but Gorsuch’s dissent becomes clearer upon reading the state’s brief. His opinion says nothing about his view of _Obergefell_ or same-sex marriage. Arkansas maintains two birth-certificate statutes: one for “unassisted” conception (not involving assisted reproduction) and one for conception from assisted reproduction. The plaintiffs here, who obviously used assisted reproduction, nonetheless sued to overturn certain aspects of the unassisted-repro statute on a broader theory that taking biological relationships into account on a birth certificate is generally impermissible. The assisted-reproduction statute, as written, applies only to opposite-sex couples. The state AG expressly conceded that that statute is now unconstitutional under _Obergefell_ and asked the court to overturn it. The court refused, because the plaintiffs had not challenged that law. The unassisted-repro statute contains presumptions that only apply to opposite-sex couples. The state’s position is that that is permissible, because unassisted reproduction, by definition, always only involves opposite-sex couples. The lower court issued two orders. In one, it ordered the state to issue birth certificates showing the plaintiff couples as parents. The state did so, and did not challenge that order. In the other, it invalidated the presumptions in the unassisted-repro statute, and that’s what the state appealed. The Ark. Supreme Court held that Obergefell did not require that result, and it reversed the invalidation of those provisions. The US Supreme Court granted summary reversal of that order, without calling for full briefing or oral argument, and that is what Gorsuch opposed. As he points out, the Court’s ruling does not resolve any of the confusion engendered by this case. it is not clear how the state is to issue birth certificates in cases of unassisted reproduction now (potentially an affidavit of paternity will be required from the mother in all cases). Moreover, it is not clear that the ruling helps other same-sex couples at all, since the assisted-reproduction statute remains unaddressed. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 30, 2017, 4:53pm UTC](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965/40 "2017-06-30T16:53:44Z")
That’s more accurate that the Slate piece, but I don’t think gets the relationship between the birth certificate law and the artificial insemination law correct. The artificial insemination law says nothing about birth certificates. Arkansas has interpreted the birth certificate law to include husbands of wives who get artificial insemination, but not wives of wives who get artificial insemination. So plaintiffs challenged that interpretation of the birth certificate law. The disconnect between the majority and Gorsuch is mostly in the subtext. In particular, about whether the case was mooted by Arkansas conceding that the insemination law was changed by Obergefell and offering the correct birth certificates. Gorsuch didn’t actually argue that the case was moot and neither did Arkansas–I think because they would be wrong on the law–but they both sort of wave at that in the hope of preventing cert and subsequently to criticize summary decision. [Previous page](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965.md?page=1) [Next page](https://boards.straightdope.com/t/arkansas-gets-schooled-on-ssm/789965.md?page=3)