I’ve finally gotten around to reading through Ohio Attorney General Mike DeWine’s latest legal emetic in Obergefell v. Hodges.
It is the most tortured, callous, self-contradictory, unintentionally hilarious, and ultimately sickening court document I’ve read since… well, since the 6th District Court ruling that brought the case to the bench of the U.S. Supreme Court.
Mike DeWine arguing before SCOTUS that gay people don’t deserve equal rights because of all the political power they wield the same week neighboring Indiana passes its right-to-discriminate-against-gay-people legislation is Wes Anderson-heavy irony.
Hat tip to Ian Millhiser for handling this one:
The implication of Ohio’s argument is that groups seeking to invoke the Constitution’s guarantee of equality must bring a lawsuit during a kind of Goldilocks period — when the group simultaneously has amassed enough clout to earn the justices’ sympathies, but without amassing so much clout that they are only permitted to appeal to the political branches. But the Court’s civil rights cases have never insisted on this kind of Goldilocks rule.
Millhiser points to the Supreme Court’s upholding the right of interracial couples to be free from marriage discrimination in 1967’s Loving v. Virginia three years after the Civil Rights Act of 1964 banned discrimination in employment and public accommodations.
Gay people in Ohio enjoy no protection from discrimination in private employment, public accommodations, the right to marry, or the right to have out-of-state marriages recognized on birth and death certificates, exactly the status quo Mike DeWine is fighting feverishly to maintain.
Millhiser also notes that in 2013 the John Boehner-led U.S. House of Representatives “made a similar gay-people-are-too-powerful argument in their brief supporting the anti-gay Defense of Marriage Act (DOMA).”
“That brief claimed that ‘gays and lesbians are one of the most influential, best-connected, best-funded, and best organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.'”
The Supreme Court didn’t buy it and shot down DOMA 5-4 in the United States v. Windsor case.
So in Mike DeWine’s twisted estimation, gay people don’t qualify for judicial protection because they have enough power to obtain political protection they don’t have enough power in Ohio to obtain.
To Mike DeWine, no group deserves judicial protection unless it is politically invisible and powerless. That’s his language: “political invisibility” and “political powerlessness” are the only things that could satisfy “protected-class status.”
Which is, of course, why DeWine has spent so much of Ohio’s time and money filing amicus briefs protecting politically powerless corporations from “religious” discrimination, and defending politically invisible energy companies from being subjected to court action related to their emissions of carbon dioxide.
And of course, because Ohio Revised Code gives protected-class status to people on the basis of “race, color, religion, sex, military status, national origin, disability, age, (and) ancestry,” Mike DeWine must then view anybody meeting these distinctions (which is pretty much all of us) as politically invisible and powerless.
Well he sure treats us that way, don’t he, folks? It’s how he shows he cares.
David DeWitt is a writer and man of sport and leisure based out of Athens, Ohio. He has also written for Government Executive online, the National Journal’s Hotline, and The New York Observer’s Politicker.com. He can be found on Twitter @TheRevDeWitt.