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.
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.
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?
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.
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.
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?
I’m not sure your characterization of 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, 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.
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’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.
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.
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?
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 that this dissent “says nothing about how he would rule if the case were argued before the court”, and reiterated the same here:
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.
… 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.
“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.”
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.
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.
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.
We talked about this analysis in another thread which I don’t think you participated in. Here is what I said then:
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.
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.
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.
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?
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.
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.
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.