Law

Over-the-Counter Plan B Strikes Back

WikiMedia Commons
One of the low points of Obama's first term was his administration's decision to overrule FDA experts and refuse to make over-the-counter emergency contraception—like Plan B—available to women under 17. Last Friday, a federal judge held that the action was not merely wrong on the merits, but illegal. If the decision is not overturned on appeal, women under 17 will (as they should) have the same access to emergency contraception that women over 17 have. The deplorable policy implications of the Obama administration's response does not, in itself, constitute an argument that it was illegal. The opinion by Reagan-appointed District Court judge Edward Korman, however, makes a compelling legal case that the override of the FDA was illegal. The crucial factor underlying Korman's opinion is the question of whether the executive branch followed the appropriate procedures. Congress, for better or worse, has the broad authority to regulate the availability of drugs. If it chose to ignore the...

Martin Luther King and Today's Gun Advocates

Photo from the Library of Congress/Dick DeMarsico
Martin Luther King, Jr. was assassinated 45 years ago yesterday, and one of the interesting little sidelights to the debate over guns that you might not be aware of is that gun advocates claim King as one of their own. You see, King had armed guards protect his family, and at one point applied for a permit in Alabama to carry a concealed weapon himself. He was turned down, since in the Jim Crow days the state of Alabama wasn't about to let black men carry guns. You can find references to these facts on all kinds of pro-gun web sites, as nonsensical as it may seem. Gun advocates want to claim King as part of their cause, but also want to completely repudiate everything he believed about the power of nonviolence, which is kind of like Exxon saying John Muir would have favored drilling for oil in Yosemite because he sometimes rode in cars. The reason Martin Luther King sought armed protection was there were significant numbers of people who wanted to kill him, and eventually one of them...

It's a Nice Day for a Gay Wedding

flickr / soyoureengayged
Last week's oral arguments in two landmark cases involving same-sex marriage will likely not be followed by opinions until late June. In the interim, there will be a great deal of speculation about what various rulings might mean. With respect to the legal challenge to Section 3 of the Defense of Marriage Act, speculation about the outcome will be less common because most legal observers (including me) expect a comfortable majority of the Court to strike it down. With respect to the challenge to California's Proposition 8, however, the outcome is less certain. Each outcome will lead to markedly different developments for gay and lesbian rights. For this reason it's worth teasing out the implications of the possible rulings in the challenge to Prop 8. The are three potential outcomes, which I will argue are in ascending order of desirability: Prop 8 Is Upheld This would be the worst-case scenario, a 21st century Bowers v. Hardwick , the 1986 case upholding a Georgia sodomy law. Kennedy...

Obama Pleads for Empathy on Guns

Throughout his presidency, Barack Obama has portrayed himself as Washington's last reasonable man, pleading that we can find some common ground on almost any issue despite our disagreements if we just listen to each other and open our hearts a little. Republicans complain that it's all just an act—he's just trying to look like the reasonable one, to make his opponents look more intransigent and stubborn and gain the upper hand politically. That may be partly true, even though they don't need his help to look unreasonable; they do a fine job of it all by themselves. The latest narrative on the gun issue is that the prospects for meaningful legislation are slipping away as the tragedy of Newtown fades from our ridiculously short memories and members of Congress feel little of the public pressure required for them to stand up to the NRA. So Obama has been campaigning for his favored legislation, and yesterday he gave a speech in Colorado, the centerpiece of which was a plea to both sides...

The Dead End That Is Public Opinion

If you want to produce change, make politicians as terrified as this sandwich. (Flickr/Sakurako Kitsa)
As the effort to enact new gun legislation hobbles along, liberals have noted over and over that in polls, 90 percent or so of the public favors universal background checks. In speaking about this yesterday, President Obama said, "Nothing is more powerful than millions of voices calling for change." Then Jonathan Bernstein explained that opinion doesn't get political results, what gets results is action. I'd take this one step farther: what gets results is not action per se, but action that produces fear . I'll explain in a moment, but here's part of Bernstein's argument: See, the problem here is equating "90 percent in the polls" with "calling for change." Sure, 90 percent of citizens, or registered voters, or whoever it is will answer in the affirmative if they're asked by a pollster about this policy. But that's not at all the same as "calling for change." It's more like...well, it is receiving a call. Not calling. Those people who have been pushing for marriage equality? They were...

Gay-Marriage Opponents, Left Behind

The American Prospect/Jamelle Bouie
The American Prospect/Jamelle Bouie O utside of the Supreme Court this week—where the nine justices were hearing oral arguments about the constitutionality of California's ban on same-sex marriage—a young woman and an old woman were arguing. "If you put all the gay people on an island," began the older woman, who looked to be in her fifties. "See, this is why people think you guys are like the KKK!" interjected the young woman. "You're talking about rounding us all up—" "Let me finish! If you put all the gay people on an island, in a generation there would be no gay people. They would die out." "That's not a realistic scenario. We all live in this country together." The older woman was nonplussed. After fielding a few more hypotheticals—How would you feel if your son or daughter were gay? What about the separation of church and state?—it became clear she was not going home convinced, and the two parted ways. America, on the other hand, has gone home convinced. The about-face in public...

Cops Gone Wild

Bad cops will keep sexually assaulting women they’re sworn to protect until we get stronger laws and better data on the number of victims.

flickr/brendangates
When 20-year-old Sarah Smith got into an accident with a motorcyclist in 2008, it was nothing but bad new—she was driving with a suspended license. It got worse. When police showed up, officer Adam Skweres took Smith aside and implied that he could either make it look like the accident was her fault or give the other party a ticket. It depended on whether she’d agree to perform unspecified sexual favors. Skweres also threatened that if she told anyone, he’d “make sure you never walk, talk, or speak again,” and looked at his gun. That scared her enough that she immediately reported what he’d done to the police, according to the Pittsburgh Post-Gazette . Another four years passed before the department arrested Skweres and suspended him without pay, and then only because he tried to rape a woman while on duty. By that time, Smith had moved out of the city for fear of running into him again. Three other women told stories similar to Smith’s, and on March 11 Skewers pled guilty to bribery...

Cops Gone Wild

Bad cops will keep sexually assaulting women they’re sworn to protect until we get stronger laws and better data on the number of victims.

flickr/brendangates
When 20-year-old Sarah Smith got into an accident with a motorcyclist in 2008, it was nothing but bad news—she was driving with a suspended license. It got worse. When police showed up, officer Adam Skweres took Smith aside and implied that he could either make it look like the accident was her fault or give the other party a ticket. It depended on whether she’d agree to perform unspecified sexual favors. Skweres also threatened that if she told anyone, he’d “make sure you never walk, talk, or speak again,” and looked at his gun. That scared her enough that she immediately reported what he’d done to the police, according to the Pittsburgh Post-Gazette . Another four years passed before the department arrested Skweres and suspended him without pay, and then only because he tried to rape a woman while on duty. By that time, Smith had moved out of the city for fear of running into him again. Three other women told stories similar to Smith’s, and on March 11 Skewers pleaded guilty to...

States' Rights > Gay Rights

AP Photo/Dana Verkouteren
AP Photo/Carolyn Kaster B y now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California. But don't put the pink champagne on ice just yet. In both days of argument, the justices spent an extraordinary amount of time dealing with knotty procedural issues. Both cases are complicated by the fact that the executive officers who usually defend laws in court (the governor and state attorney general for Prop. 8, the president and U.S. attorney general for DOMA) have no stomach for such defense, since they think the laws they’d be defending are unconstitutional. So as the nation anticipated a debate over the importance and meaning of marriage, the Court had a...

Oppressed Christians and Second-Class Citizenship

A gay lion prepares to set upon a group of Christians.
With all this talk of gay people marrying one another, some people on the right are starting to bleat about how they're being oppressed for their Christian beliefs—so oppressed, in fact, that they're starting to feel like "second-class citizens." Here's CBN's David Brody lamenting the sorrows of Kirk Cameron and Tim Tebow. Here's Red State's Erik Erikson predicting the coming pogrom ("Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan."). Here's Fox News commentator Todd Starnes on the oppression that has already begun ("it’s as if we’re second-class citizens now because we support the traditional, Biblical definition of marriage"). And how is this second-class citizenship being thrust upon them...

Asked and Answered

Flickr/Ted Eytan
Flickr/Ted Eytan The scene outside the Supreme Court yesterday I t’s a strange thing, living on the cusp of social change—miraculous and dizzying. Ten years ago to the day, on March 26, 2003, I sat in the tiny hallway that functions as the Supreme Court’s press gallery, off to the justices’ right, trying to hear the oral arguments in Lawrence v. Texas, the case in which the Supreme Court—years after the rest of the developed world—knocked down the country’s 13 remaining anti-sodomy laws. Yesterday morning, I sat there again to hear the justices consider the constitutionality of California’s ban on same-sex marriage, written into the state constitution by Proposition 8. I’ve spent my adult life writing about LGBT issues; back in the mid-1990s, I was the first lesbian to write broadly in favor of same-sex marriage, and in 1999 I published a book explaining how same-sex couples fit into marriage’s shifting historical definition. I'm going to ask you—especially if you’re not gay—to...

Privacy, Property, and the Drug War

WikiMedia Commons
While it is likely to attract little attention given today's epochal same-sex marriage arguments, the Supreme Court decided an important Fourth Amendment case on Tuesday. For the second time this year , the Supreme Court issued a ruling in a case involving drug-sniffing dog. This time, however, the Court did not allow the Fourth Amendment to be trumped by the War On (Some Classes of People Who Use Some) Drugs. Jardines v. Florida involved a home search that uncovered marijuana plants, leading to a conviction. The police received an unverified tip that marijuana was being grown in Jardines's residence, but presumably did not believe that this tip was sufficient to establish the "probable case" required by the Fourth Amendment to obtain a search warrant. To obtain a warrant, the police took a drug-sniffing dog, who indicated that it had found the scent of illegal drugs. The findings of the dog's actions were used to obtain a search warrant to search Jardines's house, which led to the...

The Unending Terror of the Red-State Democrat

An image from a new ad advocating universal background checks for gun purchases.
Over the weekend, we learned that New York mayor Michael Bloomberg will spend $12 million airing ads in 13 states pushing senators to support expanded background checks for gun purchases. NRA honcho Wayne LaPierre, in his usual restrained fashion, described Bloomberg's engagement as "reckless" and "insane," but what's so remarkable is that this is something you need an ad war to accomplish. After all, universal background checks (which would extend such checks to gun shows and private sales) enjoy pretty much universal support, with polls showing around 90 percent of Americans in favor, including overwhelming majorities of Republicans and gun owners. And yet, not only are lots of Republicans still holding back, but even some Democrats are afraid to take a position on universal background checks. Greg Sargent reports that at least five Democratic senators—Mark Pryor (AR), Mary Landrieu (LA), Kay Hagen (NC), Joe Donnelly (IN) and Heidi Heitkamp (SD)—are refusing to say where they stand...

Gay Rights, There and Back Again

Flickr/Chris Phan
AP Photo/Marcio Jose Sanchez Demonstrators chant during a rally against Proposition 8 outside City Hall in San Francisco, March 4, 2009. The Supreme Court is slated to hear oral arguments about the constitutionality of the ban this week. T omorrow, I’m going to the Supreme Court to hear a bunch of lawyers debate the status of my marriage. Do I have a right to be married? Am I married just in Massachusetts, or in the United States at large? Simply attending the arguments feels like a high point in my career: I’ve written about and followed LGBT issues, and marriage in particular, for most of my adult life. I still remember sitting at my cousin’s wedding in 1993 when someone told me about the trial-court win in Baehr v. Lewin , the Hawaii marriage lawsuit that kicked off the past twenty years of marriage organizing. Before that, marriage hadn’t occurred to me—or many of us, back in the day—as something I could have. By 2003, I knew that we would win it, and in my lifetime. This will be...

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