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The difference a week makes

Imposing a stay-at-home order sooner rather than later ha a profound effect on how many people come down with coronavirus.

The person-to-person spread of the coronavirus in the Houston region would peak in two weeks and burn out by mid-May if the stay-at-home order invoked Tuesday is continued until then, according to modeling by local scientists.

The modeling, which informed Harris County Judge Lina Hidalgo’s order, considered the effect on the spread of COVID-19, the illness caused by the virus, if she’d taken the stringent intervention immediately or waited a week or two weeks to act. Spread would increase exponentially had she waited, it found.

“From our modeling, it was clear that waiting is not a good thing,” said Eric Boerwinkle, dean of the University of Texas School of Public Health, who conducted the study with a biostatistician at that Houston institution. “The numbers are sobering, but the message is clear: early intervention is better than late intervention and more stringent intervention is better than less stringent.”

UTHealth released the modeling data as the city of Houston began gearing up — scouting sites that easily can be converted into medical centers, looking for hotel rooms for COVID-19 patients who cannot isolate at home or in a hospital — for what’s expected to be the next, worse phase of the pandemic: the exponential increase in disease numbers.

[…]

The UTHealth modeling, shared with city and county officials Monday, provided data backing the warnings. It found that intervening immediately would limit the number of cases in the region to a peak at about 150 a day around April 7 and stop the spread around May 12. In that time, the cumulative total of cases would reach nearly 3,500, it found.

Cases would peak at more than 1,000 a day on April 15 if Hidalgo had waited a week and more than 6,600 a day on April 22 if she’d waited two weeks. Transmission would last until May 29 under the first scenario and June 16 under the second.

All three of the scenarios are based on the premise the restrictions would continue until mid-May. Hidalgo’s order is scheduled to expire April 3.

This is what “exponential growth” means. The basic idea is that if everyone is out there living their normal lives, anyone who has coronavirus – remember, it takes about a week for people to become symptomatic, so you can be walking around for quite some time not knowing you have it, infecting people wherever you go – will be spreading the disease to a larger number of people, who will then do the same thing, than if everyone were at home where they will encounter far fewer people. This is one of the reasons why South Korea was as successful as it was at stopping the spread in that country – they jumped on this kind of action right away. (They also did a crapload of testing and were able to aggressively track people’s movements, but never mind that for now.) For that matter, look at the difference between Kentucky and Tennessee. Which outcome would you prefer?

Point is, putting the stay-at-home restrictions in place now, or even later, after the disease has had time to spread even if the known number of infections is still low, would mean we’ve given it an unfettered head start. That’s the scenario we need to avoid, and it’s the reason why the death wish cultists aren’t just wrong, they’re deeply dangerous. Listen to the experts. The fondest hope we have right now is that in a few weeks, when we can think about beginning to go back to normal, we can say it wasn’t nearly as bad as it could have been. We have a chance for that now.

UPDATE: Read this. Look at the chart. Consider this excerpt: “It means that on average, every infected person infects three other people, not 2.5 other people—which makes the spread of the virus much wider and faster. Without any control measures, for example, it means that after ten generations a single person will be responsible for 80,000 infections instead of 10,000 infections.” That’s what we’re talking about here.

Who gets to perform marriages?

In Texas, the answer to that question is quite limited, and a lawsuit to change that just suffered a legal setback.

Texas couples who hope to marry — and leave religion completely out of it — suffered a setback last week.

A Texas judge ruled on Friday to dismiss a civil suit challenging the state’s long-standing law that says only government officials and clergy can perform marriages in the state.

The Center for Inquiry, a New York-based nonprofit that promotes secular values, filed the suit last year against Dallas County Clerk John Warren. In its complaint — brought on behalf of two Texas members of the nonprofit group who want to officiate weddings — the center charged that the law is unconstitutional because it violates nonreligious Americans’ rights as spelled out in the First and 14th amendments, as well as the establishment clause.

In her decision, U.S. District Judge Jane Boyle conceded that the Texas statute may provide a “benefit to religious groups and their adherents over nonreligious ones” but said no “constitutional rights are violated” by the law.

She wrote that “the state has an interest in … ensuring the respect, solemnity, and gravity of marriage ceremonies” and that the “Statute in this case rationally serves that purpose.” Only judges and religious leaders can “reasonably be expected” to maintain the appropriate ceremonial dignity, Boyle wrote.

The center, which has forced two other states to allow secular officiants through similar lawsuits over the past decade, said it would appeal the ruling. Warren’s office did not respond to a request for comment.

Nicholas Little, the center’s vice president and general counsel, said he was shocked by the judge’s ruling, which he called “ridiculous.”

“What business is it of the state of Texas what the level of solemnity in your marriage ceremony is?” Little asked in an interview. “What if you want to get married by an Elvis impersonator? That’s not the state’s business!”

Many years ago – circa 1991, as best I can recall – I attended the wedding of a friend of mine and her then-boss at the We’ve Only Just Begun Chapel of Love in (of course) Las Vegas. This was, as the proprietors of said chapel took pains to note, including via a document acknowledging such, a 100% legally binding marriage. That didn’t deter my friend or her soon-to-be-legally-wedded-husband, who were in Vegas and thought “hey! we should get married at one of these silly chapels! won’t that be fun!”, because they were a couple of dumbasses. My friend later got another friend, a lawyer who specialized in maritime law, to help her get this marriage annulled. My point here is that the level of solemnity has never had anything to do with how legal a marriage is.

(For the record, we were all in town to attend COMDEX, and the “let’s get married!” idea sprung from having too much free time after the exhibition halls closed. My friend and her boss had traveled in from California, and I had happened to run into them one evening, the evening they decided to do this dumb stunt. My main regret from all this is that I didn’t have a camera.)

“It’s obviously unconstitutional because it gives a benefit to religious groups and denies that same benefit to comparable secular groups,” said Noah Feldman, a Harvard professor of constitutional law. “However — and this is a big ‘however’ — this is also an exemplar of the kind of law that might well survive judicial scrutiny.”

Courts may not want to declare state marriage laws like Texas’s unconstitutional because “it’s such a well-established tradition” and they “don’t want to rock the boat,” Feldman said. Laycock agreed, noting he was “pleasantly surprised” to learn of the center’s lawsuit.

“This hasn’t come up very often before because everyone is so used to it and because it just seemed the natural order of things,” Laycock said.

Little said the center, which began authorizing nonreligious Americans to perform weddings in 2009, wants to “fight this battle now” because the country’s shifting religious demographics demand action. He pointed to statistics suggesting that the United States is increasingly less religious — including in a recent Gallup poll that found the number of Americans belonging to a church, synagogue or mosque hit an all-time low of 50 percent in 2018.

The center plans to file more lawsuits against a range of states in the coming months, Little said.

“There’s this growing number of secular people, of agnostic or atheistic people who follow no particular religion, who want to have their wedding reflect their values,” Little said. “So we’re saying, ‘Hey! Add an extra category of people who can solemnize marriages!’ ”

[…]

That’s another reason Little is determined to advocate for the legalization of secular wedding officiants across the country. He said that there aren’t enough paths for nonreligious men and women to wed in the United States, and that Internet ordination, which is legal in Texas but was recently barred in Tennessee, isn’t a fair alternative. Little called it ludicrous that some nonreligious people must profess false sentiments online to earn a possibly bizarre religious affiliation — all in pursuit of the wedding they want.

That’s another reason Little is determined to advocate for the legalization of secular wedding officiants across the country. He said that there aren’t enough paths for nonreligious men and women to wed in the United States, and that Internet ordination, which is legal in Texas but was recently barred in Tennessee, isn’t a fair alternative. Little called it ludicrous that some nonreligious people must profess false sentiments online to earn a possibly bizarre religious affiliation — all in pursuit of the wedding they want.

Another wedding I once attended was in 1992, in Arizona, in which two dear friends were married by another dear friend, who had written off to some mail-order church in which one could get quickly ordained, for the express purpose of being able to perform this ceremony. This was the opposite of the Vegas wedding in that it was planned and involved many family and friends who came in for the celebration; the happy couple remains wedded to this day. It was the celebrant, who achieved ordination via an outfit that ran ads in the back of magazines and comic books (this was 1992, the Internet wasn’t a thing yet), and was legally empowered by the state of Arizona to join them or any other couple together as husband and wife as a result. The wedding was beautiful and solemn and if you didn’t know any better you’d have had no idea that the celebrant was performing her first (and as far as I know, only) marriage. It’s just that this was not exactly what one would call traditional.

All of this is my typically long-winded way of saying that I support the Center for Inquiry in their quest, and I agree that this ruling was ridiculous and built on an extremely shaky foundation. I wish them well in their appeal and in their other lawsuits on this topic around the country. See here and here for more.

Paxton goes after DACA

I have no words.

Best mugshot ever

Texas Attorney General Ken Paxton and officials from nine other states on Thursday urged the Trump administration to end an Obama-era program that’s allowed hundreds of thousands of undocumented immigrants to live and work in the country without fear of being deported.

In a letter to U.S. Attorney General Jeff Sessions, Paxton urged the White House to rescind the 2012 Deferred Action for Childhood Arrivals, or DACA, program. DACA applies to undocumented immigrants that came to the country before they were 16 years old and were 30 or younger as of June 2012. It awards recipients a renewable, two-year work permit and a reprieve from deportation proceedings.

As of August 2016, more than 220,000 undocumented immigrants in Texas had applied for a permit or a renewal of one under the program, and nearly 200,000 of those have been approved, according to government statistics. It’s the second-highest total behind California’s estimated 387,000 applications and 359,000 approvals during the same time frame.

“We respectfully request that the Secretary of Homeland Security phase out the DACA program,” Paxton wrote. He was joined by the attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter.

“Specifically, we request that the Secretary of Homeland Security rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future,” Paxton wrote.

[…]

The Mexican American Legal Defense and Educational Fund, or MALDEF, blasted the move and warned the signatories they’ll be remembered for being on the wrong side of history.

“Their evident xenophobia is not remotely consistent with the trajectory of our nation’s history and future progress,” MALDEF president and general counsel Thomas Saenz said in a statement. “Their political careers and each of their states will suffer from their mean-spirited stupidity.”

I don’t even know what to say about this. It’s cruel, it’s stupid, and I can’t think of a meaningful definition of “Christian” that would allow for it. The one sure to be effective thing we can do about this is to elect an Attorney General who won’t pull this crap. Nothing will change until we change who we elect. The Press, the Current, and Daily Kos have more.

“Let’s just be real” about charter schools

Very interesting.

Chirs Barbic

“Let’s just be real,” Chris Barbic wrote last week when announcing his resignation as superintendent of Tennessee’s Achievement School District.

Then Barbic admitted what skeptics of charter schools have preached for years — “achieving results in neighborhood schools is harder than in a choice environment.”

Barbic, as founder of the highly acclaimed YES Prep charter school network in Houston, was used to starting schools from scratch, enrolling students whose parents chose to send them there instead of to their zoned school. Charter schools in Texas are supposed to be open-enrollment, meaning they can’t set admission criteria, but some people argue that charters benefit simply from enrolling children with more motivated parents.

Tennessee presented a different challenge for Barbic. There, he was charged with launching a special school district that included the state’s lowest-performing schools. A key part of Barbic’s mission was to recruit charter networks to step in and improve the schools. However, he ran into some trouble as most charter operators have a start-from-scratch model, rather than taking over existing schools. Even YES Prep withdrew from the experiment.

“As a charter school founder,” Barbic wrote in his resignation letter, “I did my fair share of chest pounding over great results. I’ve learned that getting these same results in a zoned neighborhood school environment is much harder.”

Houston ISD Superintendent Terry Grier picked up on Barbic’s comments and tweeted, “Chris Barbic — courage to tell truth!”

The Houston advocacy group Community Voices for Public Education also weighed in, taking Barbic’s statement as an admission that his success was “due more to smoke and mirrors.”

In fact, Barbic’s resignation letter does not go that far. He stands by his philosophy that good teachers and principals can make a significant difference in improving student achievement, despite the challenges of poverty.

“The ‘poverty trumps education’ argument sells our educators, and more importantly, our kids way too short,” Barbic wrote. “And it is perhaps one of the most dangerous propositions that exists in our country today.”

Read the whole thing, and be sure to read Barbic’s letter of resignation. Barbic is still very much an advocate for the charter model, but his words about the challenges of replicating the kind of success that some charters have had should be heeded. Tennessee’s Achievement School District experiment is one of only a couple like it around the country, but it’s an idea that has attracted attention, including here in Texas. There was a bill by Sen. Larry Taylor, chair of the Senate Education Committee, to establish Achievement School Districts, also called “Opportunity School Districts” here, in Texas, but it didn’t get anywhere. A “parent trigger” bill that would have allowed “parents of students at underperforming public schools to demand fixes from the state commissioner of education including hiring new staff, contracting with a charter school operator to take over management or closing the school altogether” did clear the Senate but did not get a vote in the House. I feel confident that Dan Patrick isn’t going to give up on either of these ideas in 2017, and Greg Abbott is a fan as well. Barbic himself defended the ASD concept in response to a Lisa Falkenberg column that was critical of an Abbott plan for some form of ASDs in Texas. I trust Barbic’s more recent words will come up when this idea inevitably comes up again in two years.

SCOTUS will take up same sex marriage

This is it.

The Supreme Court announced on Friday that it will take up four cases challenging state bans on same-sex couples’ marriages — a long anticipated move that could lead to nationwide marriage equality.

The cases ask the justices whether Kentucky, Michigan, Ohio, and Tennessee bans on same-sex couples’ marriages and bans on recognition of same-sex couples’ marriages from out of state violate the Constitution’s due process and equal protection guarantees.

The two questions granted by the court for argument are: 1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and 2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

There will be 90 minutes of argument on the marriage question and 60 minutes of argument on the marriage recognition question, per the court’s order.

The coming showdown before the justices over same-sex couples’ marriage rights has quickly become seen as inevitable following the Nov. 6, 2014, decision of the 6th Circuit Court of Appeals to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. The ruling set up a disagreement with other appeals courts to have considered the issue; the 4th Circuit, 7th Circuit, 9th Circuit, and 10th Circuit courts of appeals all have struck down such bans on various grounds.

[…]

The same-sex couples plaintiffs’ briefs will be due by 2 p.m. Friday, Feb. 27. The states’ briefs will be due by 2 p.m. Friday, March 27. The reply briefs from the plaintiffs will be due by 2 p.m. Friday, April 17.

Then, likely in late April, the justices will hold arguments over the issue — which would mean a decision, and possible nationwide resolution of the issue, would be expected by late June.

Freedom to Marry has reactions from many of the people that have been directly involved in the litigation, while TPM reports that the Obama administration will formally ask SCOTUS to rule in favor of same sex marriage. This is what we’ve been waiting for, and while I suppose it could all go horribly wrong it’s hard not to feel optimistic. I look forward to seeing the analyses of the case as the briefs get filed and replied to and whatnot. In the meantime, I wonder if this will spur the Fifth Circuit to issue its ruling prior to SCOTUS, or if they’ll be happy to let the Supremes take that task out of their hands. The Trib lists some possibilities:

  • At the very least, the Supreme Court’s ruling — which will likely come in June — will make the 5th Circuit’s decision in the Texas case less consequential, said Aaron Bruhl, an associate law professor at the University of Houston. The 5th Circuit could issue its decision in the case in a few weeks.
  • The Supreme Court’s action on Friday could also delay the 5th Circuit’s decision in the Texas case. “It is possible that at this point [the 5th Circuit] could say, ‘Whatever we say, the authoritative decision is going to come not too much later than we would rule anyway. Maybe we should just wait,'” Bruhl said.
  • Lawyers for each side in the Texas case have said they hope the 5th Circuit rules before the U.S. Supreme Court. Bruhl said it’s possible the parties in the case will ask the court to issue a ruling even though the Supreme Court has taken up the issue again.

I also wonder what the backlash from the bad guys will look like. If all goes well, this ruling could do a lot of good for a lot of people in Texas, but as we have seen, marriage is only a piece of the puzzle. There’s a lot more to be done, and it’s not clear yet who will be more energized by a nationwide defenestration of anti-gay marriage laws. But that’s a thought for another day. For now, let’s celebrate coming this far. SCOTUSBlog and Hair Balls have more.

The bigger threat than the Plano petitions

This could be a big problem.

RedEquality

Four Republican lawmakers from the Plano area plan to introduce legislation that would bar cities and counties from adopting ordinances prohibiting discrimination against LGBT people, the Observer has learned. The proposed legislation also threatens to nullify existing LGBT-inclusive nondiscrimination ordinances in cities that are home to roughly 7.5 million Texans—or more than one-quarter of the state’s population.

The bill comes in response to the Plano City Council’s passage last month of an equal rights ordinance banning discrimination based on sexual orientation and gender identity in employment, housing and public accommodations.

“There is legislation that’s being worked on,” Rep. Matt Shaheen (R-Plano) told a group of pastors who gathered in mid-December at Plano’s Prestonwood Baptist Church in response to passage of the city’s equal rights ordinance, according to an audio recording obtained by the Observer.

[…]

Texas Pastor Council Executive Director David Welch, whose group is leading efforts to repeal equal rights ordinances in Plano and Houston, told the Observer the legislation would prohibit political subdivisions of the state from adding classes to nondiscrimination ordinances that aren’t protected under Texas or federal law—neither of which covers LGBT people.

“It should be a uniform standard statewide, and cities can’t just arbitrarily create new classes that criminalize a whole segment of the majority of the population,” Welch said. “It’s just self-evident that they’re going to try to do it city by city. We’re dealing with a broad public policy that creates criminal punishments. That’s a pretty serious issue, and when it’s based on a special agenda by a small, tiny fragment of the population … that’s a legitimate need and reason for the state Legislature to act.”

As I say, this as yet unfiled bill is a bigger threat than the petitions and the proposed constitutional amendments, since this would only need majority support to pass and would surely be signed into law by Greg “Local control means me in control” Abbott. I suppose we could hope that the business community, which is generally very favorable to municipal NDOs, might apply some pressure in Austin to stop this in its tracks. Given how effective they’ve been at dissuading their Republican buddies from doing other things they don’t like – you know, killing immigration reform, slashing funds for education and infrastructure, that sort of thing – it’s not a strategy I’d want to be dependent on.

Currently, the only state with a law prohibiting cities from enacting LGBT nondiscrimination ordinances is Tennessee. The Tennessee law, passed in 2011, prompted a lawsuit from the National Center for Lesbian Rights, but a state appeals court recently dismissed the case, saying plaintiffs didn’t have standing because they couldn’t show harm.

Shannon Minter, a Texas native who serves as legal director for the National Center for Lesbian Rights, said he now plans to file a federal lawsuit challenging the Tennessee ban.

Lawmakers in several other states have introduced proposals to ban local nondiscrimination ordinances, but none has passed. Minter said in the last few years anti-LGBT lawmakers have shifted to a religious freedom approach to counter local nondiscrimination ordinances because the strategy is more appealing politically.

“Because the Tennessee-style bill is so punitive toward all localities, I think that it’s so blatantly taking democratic power away from local governments that legislators just don’t have the stomach to do it,” Minter said.

The lawsuit challenging Tennessee’s law was based on the U.S. Supreme Court’s 1996 decision in Romer v. Evans, which struck down a Colorado law banning local protections based on sexual orientation. Authors of the Tennessee bill attempted to to get around Romer v. Evans by enacting a general prohibition on classes that aren’t covered under state law, rather than specifically targeting LGBT protections. However, Minter believes the law is still unconstitutional.

“Legislatures are not permitted to enact laws that are designed to disadvantage a particular group, and it’s as clear as it could possibly be that the purpose of these laws is to prevent gay and transgender people from gaining local anti-discrimination protections,” he said.

Tennessee lawmakers introduced the legislation in response to a nondiscrimination ordinance in one city, Nashville, and Minter said the Texas proposals broader impact would also make it more vulnerable to legal challenges.

Yes, there’s the courts. One can’t know how that might play out, and even if one felt confident that any such law would be unconstitutional on its face, these things take time and cost money and leave a lot of people in harm’s way in the interim. These are the consequences of not winning enough elections. Keep your state rep on speed dial, you’re going to need to let him or her know how you feel about this. Texas Leftist and Unfair Park have more.

Sixth Circuit stands up for inequality

It was bound to happen eventually.

RedEquality

Remember the big no-decision decision the Supreme Court issued on same-sex marriage just a month ago? The justices were asked — in five separate cases no less — to weigh in on whether same-sex couples have a constitutional right to marriage. The Supreme Court demurred on the question, which was a significant move in and of itself.

By declining to review any of the cases before it, the justices effectively blessed lower-court rulings that had struck down state gay marriage bans in five states. Circuit courts had been unanimous on the subject. So what more was there to say? Barack Obama even told Jeffrey Toobin recently that he thought this was the best Supreme Court decision of his tenure: a silent statement on the importance of letting cultural change spread across the country, one state at a time.

Well, so much for the power of silence. The U.S. Court of Appeals for the 6th Circuit just reversed rulings striking down gay-marriage bans in Michigan, Ohio, Kentucky and Tennessee. This means that four circuit courts have now struck down gay marriage bans, while one has upheld them. We no longer have unanimity. The Supreme Court, eventually, will have to step in.

The 6th Circuit decision is here. A lot of people had been waiting to see what the Fifth Circuit would do, if they would be the court that provided the circuit split that forced SCOTUS to act, but they took too long. They will still get a chance to have their say, of course, and perhaps now that they wouldn’t have to be the trailblazer for upholding this particular injustice they’ll feel more free to let their colors show. One hopes that in the end neither this ruling nor the one the Fifth Circuit is expected to make will matter. Daily Kos and Freedom to Marry have more.

Lots of same sex marriage appeals about to happen

Busy times in the federal appeals courts.

RedEquality

Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.

If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.

If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.

“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”

[…]

Arguments similar to those [that were] heard Wednesday will take place Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.

The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.

If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.

Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.

Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.

We know about the Sixth Circuit, in which arguments were heard this week. We still don’t know when the Fifth Circuit will hear arguments there, but we do know that 63 Texas legislators have signed a brief in the appeal in which they declare that same sex marriage is icky and they totally have Greg Abbott’s back. Hey, remember when something like that would have been bipartisan? This one was an all-R effort, with the TDP and these troglodytes’ two LGBT colleagues firing back. I’m so glad those days are over, even if there are still a few laggards on the issue. In any event, the national picture will almost certainly be a lot clearer, or a lot more complicated, in the next few months.

Marriage equality’s legal winning streak may be on the line this week

And it’s not even the Fifth Circuit Court of Appeals that might bring a halt, however temporary, to the march of progress.

RedEquality

Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.

Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.

Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.

If the Sixth Circuit really wants to accept a bunch of ridiculous and widely discredited arguments on behalf of discrimination, there’s not much anyone can do to stop them. History will remember them unkindly, but I suppose we’ll all be dead by then, so YOLO and all that. As the story notes, there’s a chance it might not go down this way, so let’s not get ahead of ourselves. In the end, even a bad decision just means that the Supreme Court will have to take it up sooner rather than later.

Another entry for the judicial election files

Get Wallace Jefferson on the phone for me, will ya?

Three justices on the Tennessee Supreme Court are facing an election-year attack, not for any particular decision they have authored or even for any unpopular opinion they have espoused. No, in an ugly campaign in Tennessee that appears to be getting ever uglier, Senate Speaker Ron Ramsey, who is also the state’s lieutenant governor, is attempting to oust three state Supreme Court justices in their Aug. 7 retention elections, chiefly for the judicial outrage of having been appointed to the high court by a Democrat. Under Tennessee law, the governor appoints Supreme Court justices, and then they come up for retention elections every eight years thereafter. This is a pretty common set-up in states that elect their justices.

Former Democratic Gov. Phil Bredesen appointed justices Gary Wade, Cornelia Clark, and Sharon Lee to the high court. They are all up for retention in two months and Ramsey, seemingly unable to get past the first few entries in the “Stock Campaign Insults” dictionary, has mounted a statewide assault targeting the three as “soft on crime” and “anti-business.” As the Shreveport Times notes, Ramsey is going after the three jurists “despite the fact that the Judicial Performance Evaluation Commission that Ramsey helped to appoint found them qualified to retain their posts.” Ramsey is a member of the Republican State Leadership Committee, which has a history of targeting judicial races across the country and calls the Tennessee race “high on our radar.”

Ramsey is arguing that he clairvoyantly knows that the Supreme Court as constituted will overturn limits on payouts in medical malpractice and other civil lawsuits that ensure “you’re not going to be punished by some jury that gives you some exorbitant return on the lawsuit.” And he’s also grumpy that in 2011 the Supreme Court vacated the death sentence of murderer Leonard Edward Smith because of ineffective counsel. (Smith ultimately got a life sentence in exchange for the death penalty being dropped.) But beyond the usual bellyaching about the suckiness of some court decisions with which he personally disagrees—or hopes to disagree with someday—there’s all sorts of speculation in the Tennessee press about what Ramsay is really attempting to achieve with this campaign. If even one of the incumbents loses, it will shift the balance of the court to a majority-Republican institution. The Shreveport Times posits that since the state Supreme Court justices pick the state attorney general, the purge may be an effort to create a “Republican” majority on the five-justice court to ensure that there is a newer, more Republican, attorney general. Ramsey pretty much just up and said so at the state GOP’s annual fundraiser in Nashville last week: “Folks, it’s time that we had a Republican attorney general in the state of Tennessee.”

Or it may not even be that targeted. As the editors suggest, “since the Republican Party now has supermajorities in both legislative houses and holds the governor’s office, perhaps the campaign only is an effort to complete the trifecta with the addition of the judicial branch.”

Sam Venable, a columnist at the Knoxville News-Sentinel, pointed out last week that purging the entire state of all those with a “D” behind their name—or anyone seated by anyone with a “D” behind his or her name—“is completely understandable, of course. It’s what politicians do. It’s how they live, breathe and have their being.” And of course this is true. Smearing judges who can’t, or won’t, smear back is politics pure and simple. The problem for the justice system is that the only solution to a bad guy with a well-financed attack campaign is to construct a good guy with a well-financed ad campaign. After all, the enduring lesson of the Iowa Supreme Court meltdown of 2010 is that dignified silence doesn’t win elections. And so the Tennessee Bar Association is, in an admirably bipartisan fashion, getting itself organized to finance and promote a counterinitiative to keep the judicial seats as judiciously as possible. That this is bipartisan is good. That it is happening at all (lawyers raising money for the judges before whom they will appear) is a disaster.

Note that Tennessee is using the appointment-with-retention-election system for picking judges, which is often cited as a nice, safe way to get partisan politics out of the judicial selection process. Until some people decide they don’t like the judges that the governor of the other party selected, so they’re going to work to defeat them so that the governor of their preferred political party can name replacements. Note that since these are retention elections, these judges don’t have opponents, so they technically exist outside the partisan voting process, and definitely aren’t affected by straight-ticket voting. And yet they’re affected by the partisan voting process anyway, because the people who are the most interested in the outcome of these elections are smart enough to know who plays for which team. The lack of a label on the actual ballot does not deter them. Which is what I’ve been saying all along.

I keep harping on this issue because there continue to be so many examples of why the “solutions” that so many people like to propose to “fix” the judicial selection process don’t actually work they way their advocates claim they would. The root of all problems in the judicial election process is the influence of money in judicial elections. You have to address that problem if you want to have any chance at success. I can’t see any path to a solution for judicial elections that doesn’t involve strictly limiting campaign contributions and/or public financing of judicial elections. As we currently live in a Citizens United world, that will probably require a Constitutional amendment allowing for such limits on campaign spending first. Hey, I never said this was going to be easy. The alternate path is an appointment-only system for all judicial positions, which needless to say has its own hurdles to overcome – there are thousands of judgeships in Texas, so just having a system that can scale to such a degree is daunting, and of course there’s politics aplenty any time one person gets to hand out goodies like these. My preferred approach is to overhaul the campaign finance system first, since that would also help make for better non-judicial elections, and then deal with whatever problems remain. That’s a journey of a thousand miles, and the sooner we take that first step without going down needless detours, the better.

More on Achievement School Districts

Chris Barbic, the founder of YES Prep and the superintendent of Tennessee’s Achievement School District, one of the models for Greg Abbott’s education plan, weighs in on what these things are and are not.

First, by law, the Tennessee ASD charters can’t pick and choose their students; the charters are not open-enrollment schools. When a charter joins the ASD, it replaces an existing low-performing neighborhood school – one ranked in the bottom 5 percent of schools in our state (Tennessee’s “Priority Schools”). Nothing about that school’s attendance zone changes – all zoned kids are guaranteed seats just as before, and the only kids who can transfer in to our schools are those zoned to other Priority Schools. Our ASD charters have special education populations that are larger than the local district averages – in some cases, more than one-quarter of the school’s population.

Second, it is important to put our first-year results – the entire ASD operation in Tennessee is only 2 ½ years old – in proper context. Prior to any ASD intervention, conditions in Priority Schools were dire – fewer than one in six students could read on grade level and the average ACT score was a 14. In our first year, we earned Level 5 growth as a district (the highest-possible growth rating in Tennessee) and our Memphis schools grew faster than the state average in math and science. Where our kids struggled in reading – many of them are years behind their peers – our school communities were fast learners, going into the summer with major adjustments and plans for improvement. We worked hard to create a new culture and conditions for success, earning high marks from teachers and parents.

This is what year one in a school turnaround effort is really about – changing the vision of what is possible and setting schools up for rapid growth in student achievement. It has taken many years for the Priority Schools to get where they are, and it will take more than one year to get them where they need to be.

Over the past two years, we have learned a great deal about what it takes to make an achievement school district work. A nimble and responsive governance structure is most important. In Tennessee, the ASD superintendent reports directly to the state’s commissioner of education. If an achievement school district is created to exist in a bureaucracy more cumbersome than the district and schools it is trying to fix, it will never work.

Next, it is critical that an achievement school district have charter-authorizing power. The ability to authorize charters leverages the great public charters already in Texas and provides them an opportunity to serve the highest-need kids.

And finally, an achievement school district will need adequate startup funding. We were fortunate to use federal “Race to the Top” dollars as startup capital. Texas will need to identify when, where and how this money will flow.

See here and here for the background. Barbic was responding to Lisa Falkenberg’s column from a couple of weeks ago. A few points:

– The issue of who the students are is very important. A big criticism of charter schools is that they get to cherry pick their students, which includes the ability to dump students they don’t want to deal with. If they have to take all comers and they can succeed, that’s a huge point in their favor.

– We should definitely be cautious about short term gains. As with sports teams hiring new coaches after bad seasons, there’s almost always an immediate boost in performance for a variety of reasons that have nothing to do with actual improvements in quality. I know we all want quick fixes, but until we get some long-term studies that show (for example) an increase in graduation rates and college completion, we can’t say if this model is any better or worse than what we already have.

– Note the bit about the need for adequate startup funding at the end there. Rick Perry thumbed his nose at Race To The Top funds; if Greg Abbott had any problems with that, he kept them to himself. Abbott has studiously avoided any mention of school finance throughout the Governor’s race, while he continues to defend the $5.4 billion cuts to the education budget in court. (Those budget cuts had a negative effect on charter schools, too, according to Chris Barbic.) I don’t know about you, but there’s nothing in Greg Abbott’s record or his current rhetoric that suggests to me that he’s interested in fighting for the resources that an Achievement School District would need. If I had to bet, I’d guess he’s hoping that could be a way to cut costs in the budget.

– But let’s say that Abbott would fight to ensure sufficient funding for Achievement School Districts, even to the point of going hat in hand to the dreaded federal government. If that is the case, then one has to wonder why he wouldn’t fight for adequate funding for the existing school districts. Why not fully fund them and see what they can do before you go reinventing the wheel? I know it’s crazy but hey, it just might work.

Add Tennessee to the list

A partial win, but the rest will follow.

RedEquality

A federal judge here granted a preliminary injunction Friday against the state’s ban on same-sex marriage in certain instances.

In October three same-sex couples filed a lawsuit asking the state to recognize their marriages that had been performed in states where gay marriage is legal. The four couples taking part in the suit were living and had been married in New York or California but had moved to Tennessee.

“At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history,” Judge Aleta Trauger wrote in the order.

Friday’s U.S. District Court ruling applies only to these three couples.

Nashville lawyer Abby Rubenfeld, who represents the couples, cheered the legal win and said it was a good first step toward total equality for all same-sex married couples in Tennessee.

Buzzfeed has the opinion, which leaned heavily on the one in Kentucky that made the same ruling. The Tennessean has more about the lawsuit and the couples that were the plaintiffs. The next step is a lawsuit to overturn Tennessee’s anti-gay marriage amendment, and there’s been no trouble recruiting more plaintiffs for that. Another step forward for equality, and another step towards the inevitable at the national level.

The limits of the Arkansas option

I’ve mentioned the Arkansas option for expanding Medicaid several times, under which the state uses Medicaid money to buy private health insurance for those who would be eligible for Medicaid under the Affordable Care Act. It’s not my preferred solution, but it has some merits and would certainly be better than doing nothing. However, while the federal government has shown a great deal of flexibility in allowing an arrangement like this and like what is on the table in Florida if their legislature doesn’t deep-six it, that flexibility has its limits, as the state of Tennessee found out.

It’s constitutional – deal with it

Tennessee wanted to pursue a plan like that of Arkansas, one where it would use the Medicaid expansion dollars to buy private insurance coverage. And while Arkansas received a preliminary go-ahead from HHS, Gov. Bill Haslam had a quite different experience: He says that Health and Human Services would not support his plan to expand Medicaid and, as a result, he will not move forward.

“As a result of the lack of clarity from HHS,” his office said in a late Wednesday statement, “the governor will not ask the General Assembly for approval to accept the Medicaid expansion federal funds as he continues to work for the flexibility needed to implement his plan.”

Haslam told local reporters that the Obama administration didn’t reject the entire proposal. “Of our request to Medicaid,” he said, “we got one or two yes’s, one or two no’s, and a whole lot of I don’t knows.”

[…]

But some of the other points in the Tennessee proposal might have raised eyebrows in the Hubert Humphrey Building. The governor proposed “co-pays for those who can afford to pay something.” As for what that would mean in practice, Andy Sher at the Chattanoga Times Free Press reports that the governor wanted Medicaid beneficiaries to pay the same cost-sharing as other exchange enrollees.

Medicaid experts I’ve spoken with have made it clear that such an approach wouldn’t fly: Even if they receive private coverage, the Medicaid agency would need to ensure they aren’t spending more out of pocket than they would in the public plan.

Officials in Arkansas agree with this interpretation, too. “Medicaid definitely has strict rules for people below the poverty line and then they issued some new rules this year, for people above the poverty line,” Arkansas Medicaid spokeswoman Amy Webb told me last month. “We still believe those apply, and we intend to follow those.”

I bring this up because while there has been some talk about the “Arkansas solution” among Texas Republicans, what they’re really talking about is more akin to the Tennessee proposal. Specifically, “copays, deductibles and premium payments on a sliding scale for poor patients, using asset testing to ensure services are going to people who truly need them” are among the items Rick Perry and his ideological cohorts are demanding. The shell bill filed by Rep. John Zerwas that would direct HHSC to negotiate with the Obama administration over a “Texas solution” includes this language, though it’s not clear to me if it’s an option or a requirement. If it’s the latter, I think we now know how these negotiations are going to go.

The point I’m trying to make here is that we need to pay attention to the contents of HB 3791 and listen carefully to what people like Rep. Garnet Coleman have to say about it. If the final bill includes demands for things that the feds have already categorically rejected, then we need to be aware of that up front. Because if it does contain such a requirement, then we need to be prepared for when Rick Perry claims that he “tried” to negotiate with the Obama administration but they were too inflexible and unwilling to compromise so we can call it out for the BS that it is. If Texas negotiates in good faith, the feds have shown that they can be very accommodating. If not, we shouldn’t be surprised when the negotiations fail, and we shouldn’t let the state claim that they made a legitimate effort. Perry and his cronies have made it abundantly clear that they really, really don’t want to expand Medicaid. We should take them at their word and not be distracted by side issues.

Two suggestions for better elections

Ed Kilgore writes that Tennessee Democrats shot themselves in the foot with the winner of their low-information, low-profile Senate primary.

[F]acing incumbent Sen. Bob Corker will be some obscure dude named Mark Clayton, who won a plurality of the vote in a large field of unknowns via the inestimable advantage of appearing at the top of the ballot thanks to his alphabetically superior surname. Turns out Clayton is an enthusiast for homophobia along with various classic conservative extremist memes, including the “NAFTA Super-Highway” and “FEMA Concentration Camps For Patriots.” The Tennessee Democratic Party quickly disowned Clayton, but the damage to the state ticket is already done.

I’d say the situation provides some empirical evidence relevant to two issues of how states conduct elections. Tennessee is one of the relatively few southern states without a threshold requirement of the percentage of votes needed to secure a party nomination. Requiring runoffs can have pernicious effects, but on the other hand, it’s a good way to avoid deeply embarrassing accidental nominations, as Texas Democrats showed earlier this week by nominating former state senator Paul Sadler for the Senate instead of perennial candidate (sometimes as a Republican) Grady Yarbrough, whose first place finish in the primary seems to have been primarily a matter of voters confusing him with the late liberal Sen. Ralph Yarborough.

As for the alphabetical ballot listing issue, it’s long past time for every state to list non-incumbent candidates randomly. Otherwise Tennessee primary ballots may regularly feature crazy-person candidates with names like Aaron Aardvark, and Democrats may fondly remember the days when they worried Bob Corker’s last opponent, Harold Ford, Jr., was not sufficiently progressive.

We do have runoffs here, and as was the case in 2006 with Barbara Radnofsky versus Gene Kelly, I think that helped the voters figure out who the candidates were and why one was such an obviously better choice than the other. In our case at least, Paul Sadler would have been the nominee anyway under Tennessee’s system, as he finished first among the four candidates in May. One possible reason why Sadler did so much better in the runoff may be the email sent by the TDP highlighting the differences between his record and that of his runoff opponent’s. Some people disliked that action as you can see from the comments on that post, but I’m not one of them. I do think it’s appropriate and increasingly necessary for the party to play at least an informational role in primary elections. I don’t want to see smoke-filled-room shenanigans of the old days, but I do want to see the party – state or county as appropriate – put together and disseminate basic factual data about candidates in its primaries for the benefit of the voters. Stuff like primary voting history, political contributions, previous candidacies, that sort of thing. Sure, that would normally be the province of a candidate’s campaign, but I see this as being as much in the interest of the party whose banner is going to be carried by the winners of these races. This isn’t foolproof, as there are people who change their minds about which party best represents them and we want to be welcoming to them, but on the whole I think it will do a lot of good. If nothing else, if it forces parties to do a better job of maintaining contact information for its members, it will be a win.

As for randomizing ballot order, that’s a longtime hobbyhorse of mine. I do not understand why in this age of electronic voting machines that isn’t standard practice by now. As far as I’m concerned, every election in Texas that requires a majority of the vote to win – primaries, special elections, local and city elections, pretty much everything except the even-year November generals – should always have randomized ballot ordering. No one should be at an advantage or a disadvantage because of the luck of a ballot draw. I can’t even begin to think of an argument against this.