Law

The New Gay-Rights Frontier

Flickr/Stéfan

As the Supreme Court prepares to take its first serious look at the issue of same-sex marriage—with oral arguments set to begin March 26 in back-to-back challenges to California’s Proposition 8 and the Defense of Marriage Act—gay-rights activists and their supporters in the New Jersey Legislature are quietly advancing their fight for LGBT equality on a separate front, with a concerted push to undermine the practice of controversial gay conversion therapy in the state. 

Weird Friends of the Court

AP Photo/Charlie Neibergall

If you’ve felt encouraged by recent trends in favor of gay rights—including the new Washington Post poll showing 58 percent of Americans support marriage equality—swing over to SCOTUSblog and read some of the nearly 60 “friend of the Court” briefs opposing gay marriage.

On Tuesday and Wednesday of next week, the Supreme Court will hear arguments in two cases—the first on California’s Prop 8, the second on the Defense of Marriage Act—that could determine whether the federal government can define marriage as between a man and a woman, and whether state bans on same-sex marriage are unconstitutional. The parties are represented by some of the lions of the Supreme Court bar, including two former Solicitor Generals—Paul Clement and Ted Olson—on either side of the issue (though arguing on separate days and on separate cases). Their briefs are strong.

But the Court allows others to file briefs as amici curiae, or “friends of the Court.” These amicus briefs are usually a mixed bag, and on cases like this especially so. Controversial cases about social issues bring out the crazies, and crazies can hire lawyers to write a brief. Sometimes the crazies are the lawyers.

Arizona versus the Right to Vote

Flickr/Wally Gobetz

As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state.

The Boehner Rule

flickr/Talk Radio News Service

After months of Republican resistance, the House of Representative finally renewed the Violence Against Women Act (VAWA) late last month. What many casual political observers may not know is that there were always enough votes in the House for the bill to pass, but it couldn’t get a vote because of something called the “Hastert Rule”—an informal practice in the House by which only legislation supported by a majority of the majority party (in this case, Republicans) is allowed to come to a vote. How Speaker John Boehner got VAWA passed tells us a lot about what the next two years is going to be like in Washington.

The Making of the "Other" Chicago

AP Photo/M. Spencer Green

This past January was the deadliest month in Chicago in more than a decade. Forty-two people lost their lives on the city’s streets, most of them to gun violence. For 2012, the total number of homicides was 509, of which 443 involved firearms. While most of the shootings could be attributed to gang feuds, innocent people were caught in crossfire that often erupted in broad daylight and on public streets.

All Wall Street Regulators Should be Self-Funded

Systemic RIsk Council.org

When a crew that calls themselves the "Systemic Risk Council" speaks, it's a good idea to pay attention. After all, the last time people pooh-poohed deep-seated problems within the financial system, trillions of dollars vanished into thin air and millions of people were thrown out of work. 

The Filibuster that Matters

AP Photo/Jim McKnight

The Prospect's Jamelle Bouie makes an important point about Rand Paul's rare Mr. Smith Goes to Washington-style filibuster on Wednesday. Before Paul started speaking to hold up the nomination of John Brennan to head the CIA, the Senate silently continued to filibuster Caitlin Halligan's nomination to the D.C. Circuit Court of Appeals. Paul's filibuster will get more attention, but the filibuster of Halligan is more telling.

The Internet's Patriot Act

flickr/IronCurtaiNYC

“I believe that it is very possible,” former Defense Secretary Leon Panetta told a rapt audience at Georgetown University earlier this month, “the next Pearl Harbor could be a cyber attack that would have one hell of an impact on the United States of America.” That’s a belief Homeland Security Secretary Janet Napolitano shares—in January, she urged Congress not to “wait until there is a 9/11 in the cyber world” to act on cyber-security legislation. Subtle warnings, these are not.

Over the past 12 months, hackers have broken into the networks of major news organizations, including The New York Times, The Washington Post, and The Wall Street Journal in a string of audacious security breaches. The U.S. Government Accountability Office found that cyber-security incidents reported by federal agencies have risen 800 percent since 2006. Chinese hackers infiltrated the networks of nearly 800 U.S. companies and research institutions between 2000 and 2010, siphoning trillions of dollars in trade secrets and industrial IP. “They are stealing everything that isn’t bolted down,” warned House Intelligence Committee chair Mike Rogers, the lead sponsor of CISPA—the bill designed to counter these cyber threats. “And it’s getting exponentially worse.”

Gun Control’s Long Game

AP Photo/Mike Groll

You could be forgiven for thinking that recent news out of New York proves gun-rights supporters have lawmakers on the run. In mid-February, 500 outraged opponents of gun restrictions held a rally in Albany’s freezing temperatures to protest the state’s new gun-control regulations passed January 15. The president of a large state gun dealer said on January 21 that tens of thousands of assault rifle owners would boycott an April 2014 registration deadline mandated by the law. An anonymous source in Governor Andrew Cuomo’s office responded like a parent who’s given up doing anything about their acting-out teen: “Many of these assault-rifle owners aren’t going to register; we realize that.”

That official called it right. Those who expect the New York SAFE Act— which bans the purchase of new assault weapons and requires registration of those owned before the law took effect—to keep new assault rifles out of New York immediately will probably be disappointed.

Local prosecutors and cops have wide latitude in how aggressively to pursue busts and convictions under state law, says James B. Jacobs, professor of constitutional law at New York University. In a wink and nod to gun-rights supporters, the New York Sheriff’s Association issued a statement on January 25 asserting that the law doesn’t require its members to “go door-to-door to confiscate any weapons newly classified as assault weapons, and [sheriffs] will not do so.” In downstate Ulster County, the district attorney told a local paper that when dealing with otherwise law-abiding citizens who have banned weapons, “(police) will take those items away, but that’s not necessarily something we would prosecute.”

All of that would seem to augur poorly for getting results on the ground with new gun laws in other states. Why pass an assault-weapons ban if it’s honored more in breach than observance?

Scalia's Weird VRA Spat

It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the "preclearance" provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.

Secret Wiretapping Cannot Be Challenged Because It's Secret

By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, the Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning.

The Glocks Are Falling! The Glocks Are Falling!

flickr/ Wisconsin Department of Natural Resources

The gun crowd is so paranoid about the erosion of their Second Amendment rights that they make Chicken Little look like an actuary. The president’s recent gun proposals include initiatives such as expanded background checks, a ban on certain military-type rifles, and limits on the size of magazines. But if you listen to the gun folks, even these tepid proposals are—to quote a past president of the National Rifle Association—“unconstitutional schemes to gut the Second Amendment.” Iowa Senator Charles Grassley accused Obama of thinking “the Second Amendment can be tossed aside.” Any skeptical glance in the direction of that Glock on their hip is worth a Second Amendment yelp.

An Empty Eighth Amendment Promise

Wikimedia commons

Warren Hill has an IQ below 70. Despite this, barring an unlikely intervention by the Supreme Court, he will be executed by the state of Georgia tonight. The likelihood of this outcome is a lesson in how Supreme Court decisions can't always be taken at face value.

Now Hiring: A Few Good Judges

Flickr/Cliff

Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.

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