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By David G. Savage, Tribune Washington Bureau (TNS)

WASHINGTON — When Justice Anthony M. Kennedy spoke for the Supreme Court in 2013 in striking down part of a federal law that denied benefits to legally married gay couples, he cited two reasons: states’ rights and equal rights.

Throughout American history, Kennedy said, states had “full power over marriage and divorce,” including “the definition and regulation of marriage.” He referred to the act of Congress as a federal intrusion on state power that discriminated against gay couples and denied the equality of same-sex marriages.

His opinion for a 5-4 majority in United States vs. Windsor striking down a key provision of the Defense of Marriage Act may have been read as endorsing a two-track approach: one that provided full rights for legally married gay couples while preserving a state’s right to decide on the definition of marriage.

Now, after the justices agreed Friday to take up the issue again, Kennedy and the other justices must reconcile what they left unresolved two years ago. Is marriage for gays and lesbians a matter of equal rights and individual liberty guaranteed by the Constitution? Or is it a matter left to the states?

Despite its ambiguity, Kennedy’s opinion in Windsor was heralded as a major victory for the “marriage equality” movement, reflecting a powerful social change that had swept across the nation. It came on the same day that the high court, with Kennedy in dissent, dismissed an appeal from California, which had the effect of restoring gay marriages in the state.

Since then, federal judges from Utah to Florida have read the Windsor opinion as implicitly endorsing a constitutional right for same-sex couples to marry.

At the same time, defenders of state laws that limit marriage to a man and a woman also cited Kennedy’s words in their appeals.

In his appeal in DeBoer vs. Snyder, one of four cases that will be heard in April, Michigan Attorney General Bill Schuette said the Windsor opinion had reaffirmed the view that the definition of marriage was, in Kennedy’s words, “within the authority and realm of the separate states.”

He also cited Kennedy’s opinion last year that upheld the Michigan ballot measure barring race-based affirmative action at the state’s universities. He noted that Michigan’s voters in 2004 had adopted a ballot measure limiting marriage to a man and a woman and argued that this decision, like affirmative action, should rest with the people.

If this year’s decision on gay marriage turned only on court precedents and legal logic, it would look to be a toss-up. The justices, all of whom were appointed after the Roe vs. Wade abortion decision, have been wary of forcing major changes in social policy. They also believe in deferring to the states.

But Kennedy and four of his colleagues have given signals in recent years that they are inclined to lean in favor of gay couples seeking to marry. Kennedy has said in several opinions that the government may not “demean” loving couples who are gay.

He has also taken special note of children who are being raised by same-sex couples. During arguments in the California case, he said it would be hurtful to tens of thousands of children if their same-sex parents were denied the right to marry.

The Michigan gay marriage case was brought by two nurses raising four adopted children who were abandoned by their mothers. The judge who heard their case said he could not justify the state’s decision to discriminate against such a committed couple.

And Kennedy, unlike Justice Antonin Scalia, also believes the law must evolve and change based on “a new perspective and a new insight,” as he said in the Windsor case. In decades past, legal marriages for gay couples might have struck many people as unusual, he said, but not today.

The best clue to the outcome may be seen in the court’s recent actions. Last summer, the justices had appeals from five states with bans on same-sex marriage that had been struck down by federal judges. State officials from red states such as Utah, Oklahoma and Indiana were anxious to defend their laws at the high court. And it takes the votes of only four justices to hear such an appeal.

But the court denied all the appeals in October, clearing the way for gay marriages to begin in at least 35 states. That action was seen as a signal that the ultimate decision had been made, even if the justices had yet to formulate an opinion to explain the result.

Photo: Matt H. Wade via Wikimedia Commons

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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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