Absence

Dear Readers,

Sorry for the absence.  I have been abroad on vacation, working hard, and now distracted by the World Cup.  I hate letting a month go by without posting though, so here is my apology. 

In the meantime, marriage equality is here to stay in my home state of Pennsylvania, which means the entire Northeast and West Coast are in the win columns.  Another ban has been struck down (pending a stay) in Wisconsin, so now over half of the country has marriage equality or the law has been struck down and put on hold temporarily.  Interesting times. 

A Celebration Of The Wurst

My dear readers,

I am very sorry that I have been absent these past few weeks.  While abroad I have missed much, the judicial decisions in Arkansas and Idaho, the oral arguments before the 4th Circuit, the goings on in Oregon, where a decision is expected to be handed down in a matter of hours from the time of this writing.  And, as warned, I missed my Eurovision recap.

Nevertheless, I do want to write a little about things on my mind related to the Eurovision Song Contest.  Being in the audience is a completely different experience than being at a party.  It is a little like Plato’s cave.  If watching online is the shadows, and a Eurovision party is the fire, then actually attending is like seeing the light of the sun.  Everyone should do it at least once.  Most of the acts are actually designed for the stage, and television obscures all the goings on–Azerbaijan’s act with the acrobat is a good example.  The cameras can show the woman or the acrobat, but not both.  Or at least not often.   In the audience however, you can see it all.  (On the other hand, the excellent Dutch entry benefited from television because the song was free of gimmicks, and the cameras could focus on a specific musician and nothing was lost.  That however, was a rarity.)  Television also cannot show the stagecraft so well, such as the interesting way lights were used (Sweden).

But the best part of the show is the audience and watching the way the performers feed of the audience excitement.  Being in Copenhagen, Denmark’s entry got a very warm reception (as did neighbors Norway and Sweden).  But the real story of course was Conchita Wurst, the bearded Austrian drag queen who won the competition.  The largest applause of the night was for her.  You can sort of hear in the television feed the audience singing along Conchita whenever she get to the chorus, particularly the “Riiiiiiiiiiise like a phoenix” line.  I can assure you that it was much louder in the hall.  When the song ended, the cheering was so boisterous and the excitement so palpable, my partner turned to me and said, “We have a winner.”

It should come as no surprise that the live Eurovision audience is comprised largely, perhaps mostly, of gay men.  In the run up to the competition, Eurovision and Copenhagen had been doing everything possible to make gay men feel welcome (the amount of emails I got telling me to get gay-married in Copenhagen would make a Jewish mother blush).  There were practically as many pride flags at Eurovision as national flags.  This embrace was a sharp contrast to the homophobia coming out of Eastern Europe in the past year, particularly the Russian government.  After watching Russia pass laws designed to demean gay people and tear about their families, gays had the further humiliation of witnessing the world not care.  The Sochi Olympics proved exactly how little regard we are actually held in when money and diplomacy are on the line.  When members of the Russian government (and from Russia’s annoying little sibling Belarus) started attacking Conchita, a gay man when in not in drag, she became the symbol of the LGBT community’s resistance to Russia.  In Eurovision terms, Conchita won the all-important gay bloc vote, a bloc that had not come together in such solidarity since 1998 for Dana International’s win.  (The animosity toward Russia also extended to the Russian entry, the Tolmachevy twins, who received loud boos after their performance and even louder one every time they were awarded 8, 10, 0r 12 points during the voting.  They themselves did not deserve such treatment, but it underscored the anger at Russia.)  That Russian government officials completely flipped out afterwards, combined with the knowledge that Conchita came in third in the Russian televote (and that her song went to the top of Russia’s iTunes chart), only made her win that much sweeter.  Conchita has before and since been an eloquent and elegant spokesperson for the LGBT community, which is another reason for the rallying behind her.  She fended off the ugliest homophobia with grace and panache.

2014 may well  the year of the European drag queen.  Earlier this year, the Irish gay rights activist and drag queen Panti Bliss (real name Rory O’Neill) discussed homophobia in Ireland and called out certain journalists and institutions for their homophobic actions and writings.  Those who were named threatened to sue O’Neill and the broadcast network for libel.  (Ireland, like Britain, has ridiculous libel laws.)  The network settled, and in response, O’Neill, as Panti, gave a speech in response at the Abbey Theater in Dublin.  It is a remarkable speech about the events and about homophobia that deserves to be watched in its entirety.  The video has been seen by hundreds of thousands of people around the world.

So to date, an Irish drag queen gave one of the best speeches in that nation’s history and an Austrian drag queen won the world’s biggest music contest.  And the year is not even half over.

Eurovision Recap Status

Every year following the Eurovision Song Contest, I like to write a recap of the competition as I saw it.  This year however, will be a little different.  This year, I will be in the audience in Copenhagen, and I will be traveling through Denmark over the following week.  No time to write a recap.  I will try to write thoughts and reflections of Eurovision when I return, but no promises.

 

Rewriting History: The Revolution Began In 2008

Recently, The New York Times published an excerpt from Jo Becker’s forthcoming book Forcing the Spring: Inside the Fight for Marriage Equality.  The excerpt in question detailed the end of President Obama’s phony “evolution” in coming to support marriage equality.  Becker’s book however, has set off something off a nuclear reaction of criticism.  I have not read the book, but from all that I have read, that opprobrium is more than merited.

The basic flaw of Becker’s book, which she herself does not deny, is that she either ignores or disregards practically everything about the marriage equality movement prior to the 2008 election when both Obama and California’s noxious Proposition 8 won at the polls.  The heroes of Becker’s book are: (1) a then-unknown political consultant named Chad Griffin who founded Americans for Equal Rights (AFER) to overturn Prop 8 in the courts and later became president of the Human Rights Campaign; (2) David Boies and Ted Olsen, the superstar lawyers who headed up the legal team (hired by AFER) to overturn Prop 8 and by extension bring marriage equality to the whole nation; and (3) Ken Mehlman, the (gay) former head of the Republican National Committee who, along with Olsen, allegedly helped make marriage equality palatable to Republicans–and who was also a major fundraiser for AFER.  According to Becker it was their combined efforts that led first to public White House embrace of marriage equality and then victory at the Supreme Court.

Except, of course, that is not how the story goes.  2008 was an important touchstone, but it is only one part of a larger story that has not been written yet and has not been finished.  In framing her story as such, Becker ignored the entirety of the marriage equality movement, and worse, has slighted its most important architects.  One of those architects, Andrew Sullivan, is outraged, and has posted a great many blog posts to that effect.

Now I am no fan of Andrew Sullivan.  He is myopic, stubborn, self-promotional, and at times downright dishonest.  His continued bashing of the gay left for the resignation of Brandon Eich, rather than say, Mozilla (who got rid of him) or Eich himself (for donating to Prop 8) is more about Sullivan’s political agenda than any kind of passion for free speech.  In Sullivan’s world, the gay left deserves the blame.

Nevertheless, in this instance his reading appears to be absolutely true.  It is because Sullivan is the messenger, probably too many people will refuse to hear his message, and it is a message that needs to be heard.  Becker, for her part, herself did not acquit herself particularly well in her response to the criticism, effectively saying she was not trying to write an overarching history–an about-face from her publisher’s publicity materials and even her own writing.  What Becker’s critics (including Sullivan, Nathaniel Frank, Chris Geidner, Isaac Chotiner, Gabriel Arana, Dan Savage, Frank Rich, Jim Messina, John Aravosis, Michelangelo Signorile, Noah Feldman, and many others) have pointed out is that Becker disregarded or ignored the marriage equality movement’s most important activists and touchstone moments while propping up the lesser lights of the Prop 8 team to whom she had full access.  Among the disregarded include Evan Wolfson, Mary Bonauto, and Sullivan, as he himself was quick to note.

But Sullivan, despite being correct, engaged in a little revisionism of his own.  Yes, it is true that his 1989 cover story for The New Republic was a major statement, particularly as he made a conservative case for marriage equality, and yes it is also true that many gay people criticized him (and Wolfson), sometimes especially viciously, for advocating marriage rights.  But Sullivan’s rants make it seem like marriage equality was his brainchild, born in 1989, and aided in part by Wolfson (a staunch liberal) and some other gay conservative and libertarian thinkers.  Sullivan was by no means the first person to make the case for marriage equality; same-sex unions have existed around the world throughout recorded history.  In fact, a little over a month after Sullivan wrote his cover story, six same-sex couples in Denmark entered into the world’s first registered partnerships, which was like civil unions but without child custody rights.  As the New York Times noted at the time, registered partnerships in Denmark were the culmination of “a 40-year campaign by gay rights advocates.”  (Full marriage equality did not come to Denmark until 2012.)  While it is tempting here in the United States to think that the rest of the world follows our lead on LGBT rights because of Stonewall and such, the truth is that the movement for gay rights and same-sex marriage was a central European (re: German) innovation.

Even in the United States, the push for same-sex marriage did not start with Sullivan or even Wolfson, whose 1983 law school thesis was about marriage equality.  (Wolfson was probably the most unfairly maligned figure in Becker’s book, tarred as a reactionary and an obstacle to progress, when the truth is that no one has been more important to the success of the marriage equality movement.)  In truth, even Wolfson was late to the game.  In 1970, Richard John Baker and James Michael McConnell tried to get a marriage license in Minnesota and were tried.  They appealed their case all the way to the United States Supreme Court, who turned it down for “want of a substantial federal question.”  (Although Minnesota now has marriage equality and clearly the Supreme Court has recognized that there is a substantial federal question involved, Baker and McConnell’s case, Baker v. Nelson, was not explicitly overturned and still lurks in opposition briefs in marriage equality cases.)  Other same-sex couples in the 1970′s also tried to get marriage licenses with no more lasting success.

The most important motivating factor in the battle for same-sex marriage however, was not a person but an epidemic–a fact that no one involved in the marriage movement would deny.  When the AIDS pandemic hit in the early 1980′s, it was seen as a gay disease; the original name was not AIDS, it was GRID–Gay Related Immune Deficiency.  The AIDS epidemic was therefore treated not as a health crisis, but as a moral judgment on a deserving population of degenerates.  (Never mind that other populations were also suffering.)  The lack of legal protections for couples became immediately and horrifically apparent.  Two men who built a life together learned that the law did not protect them when the worst hit.  Same-sex partners were denied hospital access to their dying lovers, often by spiteful, homophobic family members.  Survivors were thrown out of their homes, and their assets were seized.  (Those who now call gay people bullies?  They were the ones who remorselessly threw same-sex partners out in the streets.)   It was out of this mass tragedy, not Prop 8, that the marriage movement took on an urgency that is only now coming to fruition.  There were major setbacks along the way, most famously DOMA in the 1990′s, and the slew of state constitutional bans that followed, particularly in the 2004 elections.*  Nevertheless, despite the worst backlashes, it was clear to all but the most pigheaded reactionaries that progress was marching only forward, just longer than hoped.  This was not a movement that had lost its way as Becker would have you believe, but one that was steadily influencing the law and public opinion to get to the point where a federal court challenge was feasible.  And until 2003, the movement labored under the shadow of Bowers v. Hardwick, a reminder of the dangers of a Supreme Court setback.

To disregard all this, to treat Evan Wolfson, a man who devoted most of his professional life to the cause of marriage equality, so disdainfully, to nearly ignore Mary Bonauto,** in favor of Griffin, Boies, and Olsen is both shameful and misguided.  Let us not forget that Prop 8 was not a resounding victory for marriage equality; it was a limited case won on a technicality and will be forever overshadowed by its immensely more important companion case United States v. Windsor, which Becker astonishingly downplays (Signorile claims that Becker threw Edie Windsor and her attorney Roberta Kaplan under the bus).  Getting back California was a big win, but it was nowhere near the “marriage everywhere” decision that AFER had promised.  Windsor, on the other hand, (and I cannot say this enough) is the most significant civil rights decision since Brown v. Board of Education.  Around the country, every federal court decision about marriage equality orbits around Windsor.  In that sense, Olsen and Boies dramatically failed.  Even now, it is entirely likely that Boies and Olsen will not be first in the race back to the Supreme Court, as they are focused in Virginia and the cases in Utah and Oklahoma are much more likely to get there first.  (I linked to Feldman’s piece above, and it is worth linking to again to note how risky a game Boies and Olsen played, and how we can only hope they don’t get a second bite at the apple.)

So as easy (and tempting) as it is to Sullivan, he is absolutely correct that Jo Becker’s history of the battle for marriage equality is access journalism of the worst kind.  Griffin, Olsen, and Boies gave her the unfettered access, and they are the ones who are lionized.

Footnotes: 

*  I once went to hear Dan Savage speak, something I recommend everyone should do, and someone asked him whether Ken Mehlman has done enough to be forgiven for his part in the 2004 elections.  Savage equivocated during the course of his answer moving from “not yet” to “yes,” which shows how much ambivalence Mehlman engenders in the LGBT community.  For my part, no matter what Ken Mehlman does, no matter how many times he apologizes, no matter how much money he raises for AFER, no matter how many Republican politicians he talks to, I will never forgive him for his part in 2004.  He exploited fear and hatred of gay people in order to make the world a worse place for everyone.  Sometimes an apology, no matter how sincere, can’t undo the damage.

** I greatly admire Mary Bonauto, who has proved time and time again to be the most important LGBT rights attorney in the country.  Bonauto brought the LGBT rights movement its first two important, permanent legal victories in Vermont (civil unions) and Massachusetts (marriage).  Bonauto and her organization Gay & Lesbian Advocates & Defenders (GLAD) were involved in every single marriage equality triumph in New England, including wildly successful challenges to DOMA that were concurrent with Windsor.  In fact, had Elena Kagen not overseen the Justice Department’s response to the DOMA cases in the First Circuit, we might today be extolling the virtues of Gil rather than Windsor.  The Supreme Court chose Windsor, a legally–if not factually–identical case, because all nine Justices would be present.  Bonauto did play an important part in Windsor; she coordinated the amicus briefs, which meant that she was heavily involved in Supreme Court strategy.  Having said that however, Bonauto is not–as some people refer to her–the Thurgood Marshall of the LGBT rights movement, despite the fact that she is the movement’s most important legal figure.  This is a statement which misunderstands the history of the Civil Rights movement and makes a false analogy.  The Civil Rights movement was a decades long, well-structured, campaign that ran almost entirely through the NAACP and its autonomous-in-name-only legal arm the Legal Defense Fund (the two entities are now completely separate).  As head of the Legal Defense Fund, Thurgood Marshall was the central figure of the movement’s legal strategy, especially at the Supreme Court where he personally argued multiple cases.  A somewhat better analogy is in the (non-abortion) gender equality cases of the 1970′s, which ran through the ACLU’s Women’s Rights Project.  As head of the Women’s Rights Project, Ruth Bader Ginsburg shaped the movement and its direction.  GLAD however, is one of several LGBT rights organizations and, unlike some others, limited to a geographic region (New England).  Although groups like GLAD, Lambda, and the ACLU may work in tandem, there is also a competition between them, which Ariel Levy discussed in her New Yorker article about Edie Windsor.  There is no Thurgood Marshall (or Ruth Bader Ginsburg) of the LGBT rights movement.  This is not a knock on anyone, it is a recognition of the LGBT movement’s decentralization.

Michiganers May Marry

Another day, another state marriage ban on same-sex marriage falls.  This time, the case, DeBoer v. Snyder, from Michigan.  The legal portion of the opinion is not particularly groundbreaking albeit emotionally compelling.  Judge Bernard Friedman (a Reagan appointee, not that it matters) struck down the law based on a rational basis review under the Equal Protection Clause.  Other courts have been more groundbreaking legally or have interpreted United States v. Windsor more expansively, but Judge Friedman’s opinion is just as important, although for a completely different reason.

Until now, every post-Windsor victory has come via summary judgment, or in the case of Texas, preliminary injunction.  This means that none of those cases has gone to trial.  DeBoer however, did go to trial, and the reason for that is because unlike the other cases, DeBoer actually predates the Supreme Court’s Windsor decision.  Originally DeBoer was about adoption rights.  The lesbian plaintiffs–who are a couple–could not jointly adopt their three children because Michigan law allows only married couples to jointly adopt, and same-sex couples cannot marry under the Michigan constitution.  The plaintiffs, when they initially went to court, were concerned only about adoption not marriage.  Judge Friedman concluded that the plaintiffs were making the wrong argument.  He offered the plaintiffs the chance to amend their complaint to challenge the state’s marriage ban, which they did.  Michigan filed to dismiss the complaint, and Judge Friedman put the case on hold until after the Supreme Court handed down Windsor.

Following Windsor, Judge Friedman concluded that he could not just grant summary judgment to either side.  Therefore, he ordered a trial to be fast tracked.  After this decision, federal courts in Utah, Oklahoma, Virginia, Texas, Kentucky, and Ohio all struck down state marriage bans in part or in total.  I suspect (but cannot prove) that had the summary judgment motions in DeBoer been considered after other post-Windsor decisions, Judge Friedman would have also issued summary judgment.  Judges are conservative creatures by nature, and when there is no precedent (like, for example, four or five other federal judges striking down marriage bans on preliminary motions), they are more likely to act methodically.  In this case, “methodically” meant a full trial in which both sides brought in expert witnesses.

What makes the Michigan case so important however, is the trial itself.  Trials are slow, frustrating, and boring.  Yet, now when these cases finally reach the Supreme Court there will be a record of a neutral arbiter hearing the actual evidence and deciding accordingly.  Appellate courts hear the law, but the fact finder (usually the jury, but in this case the trial judge) hears the facts, which the appellate court almost never touches.  In this case, Michigan’s entire argument was based around a belief that marriage should be limited to heterosexual couples because children do better in homes with a mother and a father.  Judge Friedman found the evidence presented at trial did not support this argument.  Ergo, Michigan had no legitimate reason to ban same-sex marriage (the test for rational basis review).  While an appellate court may say that Judge Friedman somehow misapplied the law, that court will almost certainly not dispute his findings.  In other words, no future opinion in this case will look at the record and conclude that heterosexual couples make better parents.  Which means that Michigan’s central argument will not hold water.

~*~*~*~*~*~*~*~*~*~.

DeBoer was not the first trial in which a state constitutional amendment was adjudicated (and struck down).  The Prop 8 case also went to trial, although because of its procedural issues, the Supreme Court never addressed the substance of the case.  That will not happen here; Michigan will fight until the end.

Back when Prop 8 was being litigated, supporters of same-sex marriage had mounds of evidence on their side whereas opponents were caught pretty much flat-footed.  Their expert witnesses were terrible on the stand, and for good reason; few of them were anything remotely like experts.  None of them held up under David Bois’s ruthless cross-examination.  One of opponents’ witnesses, David Blakenhorn, has even since reversed his position and now supports marriage equality.

Following their humiliation in California, right-wing institutes, most prominently the Heritage Foundation, commissioned a series of studies in which data was manipulated so as to appear that children who grow up in same-sex households suffer as compared to their peers.  Unsurprisingly, the authors of these studies had a not-very-hidden religious and conservative agenda.  The most infamous of these studies was authored by University of Texas sociologist (and arch-Catholic) Mark Regnerus.  His study, the New Family Structures Study (“NFSS”), was designed with litigation (specifically Supreme Court litigation) as the ultimate goal.  Almost from the moment the NFSS was published, it was attacked for its faulty methodology and disingenuous conclusions.  Regnerus’s own university condemned his study (and did so again on the eve of his testimony in Michigan).  The journal that published the NFSS commissioned an internal audit following the outcry and concluded that the study should not have been published at all.  Nevertheless, equality opponents trumpeted the NFSS and groomed Regnerus for trial.  (The same criticism is true about all the studies from all the state’s expert witnesses, and Judge Friedman dismissed them all accordingly.)

At trial, Regnerus and all of the other state’s experts folded under the intense questioning of ACLU attorney Leslie Cooper.  Regnerus in particular was absolutely humiliated on the stand.  Nathaniel Frank wrote a great summation of how Cooper tore apart Regnerus.  For my own part, from following the trial and reading the background, I suspected that this trial could only come out in favor of the lesbian plaintiffs.  Therefore, I was–for the first time–less interested in the law than in the facts of the case, which I usually skip altogether.  In particular, I eagerly awaited Judge Friedman’s take on Regnerus and his study.

I was not disappointed.  Judge Friedman did not just disregard the NFSS, he (there is only one to say this) tore Mark Regnerus a new asshole.  I highly recommend the entire opinion, but in particular the section on Regnerus is pure gold and must be highlighted.

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.”  In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes.  The funder also stated that “this is a project where time is of the essence.”  Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, and Windsor v. United States, [ed: these are the trial court decisions, not the Supreme Court decisions] were threatening the funder’s concept of “the institution of marriage.”

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned [American Psychological Association] position statement.

DeBoer v. Snyder, Slip Opinion, pages 13-14.  (Citations omitted, but the scare quotes around “study” are directly from the opinion.)  Judge Friedman flat-out called Regnerus a liar and a hack, which is a strong accusation for a judicial opinion, especially one of such import.  Regnerus’s reputation was weak before, but now it is in complete tatters.  In the legal world, he is persona non grata.

The reason DeBoer is so important is that this trial highlighted the best arguments the anti-equality forces could muster, and now they have run out of time.  Marriage equality had previously won on the law; now it has indisputably won on the facts too.  Full marriage equality is a matter of when not if.  And as a happy coda, Judge Friedman did not stay his decision.  As of Saturday March 22, 2014, the day after the decision, same-sex marriage comes to Michigan as four counties have announced they will start issuing licenses (until a stay is inevitably issued).

[Update: The Sixth Circuit issued a stay Saturday afternoon after 300 couples married.]

Finally, the plaintiffs reading the decision:

Lowder Strikes Again

This time it’s not about Looking, but rather the negative critical appraisal of Dallas Buyers Club.  I have not seen DBC, so I cannot and will not speak to the merits of the movie.  This post is solely about J. Bryan Lowder’s take on the movie’s critics.  Having read his latest diatribe, I feel like Lowder ripped off the thesis of my post about Looking.  (Not that I believe he reads this blog or has read that post.)

This is how he ends his screed:

And indeed, preferences are what we’re really talking about when we analyze the LGBTQ-related criticisms of DBC—preferences about who can tell certain stories, preferences for what makes a piece of art “count,” preferences for how certain types of people should look and act. My preference? For critics to stop pretending that these judgments are ideologically neutral or ethically self-evident, because they aren’t, and because the vision for queer art they suggest is cramped, boring, and exclusive. If that’s “progress,” I’d rather hang back here with Rayon.

Everything he attacks about the critics of Dallas Buyers Club is what he attacked about Looking.  The hypocrisy and lack of self-awareness is absolutely stunning.

Breaking News: Texas Messed With

Today, yet another federal judge struck down yet another state marriage ban.  Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving.  This time the state is Texas.  Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence.  Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.

Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas.  Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws.  The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative.  This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.

However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later.  Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits.  Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)?   My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term.  My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.

Stay tuned.