Law

The Super-Sexy Case Against Gay Marriage

When I get that feelin', I need Supreme Court amicus briefs.
Three years ago, in a column titled "It's Not You, It's Me," I noted that a rhetorical shift had occurred among opponents of gay rights. In earlier times, there was lots of talk about the immorality of homosexuality and how depraved gay people were, but now those sentiments have become marginalized. For more mainstream spokespeople, the argument against same-sex marriage is not about gay people at all but about straight people. The problem with same-sex marriage, they say, is the effect gay people's marriages will have on straight people's marriages. What that effect will be, they can't precisely say, but they're sure it'll be bad. Similarly, when we argued (briefly) about repealing the "Don't Ask, Don't Tell" policy, their claims were not about whether gay soldiers could do their jobs, but whether their presence would make straight soldiers uncomfortable. Next week, the Supreme Court will hear oral arguments on cases challenging California's Proposition 8, which outlawed gay marriage...

The New Gay-Rights Frontier

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A s 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. Polls show that public support for legalizing gay marriage has hit an all-time high, with 58 percent of Americans—including a growing number of Republicans—now in favor of granting same-sex couples the rights and benefits enjoyed by their heterosexual counterparts. But even the staunchest of activists recognize that victory for marriage rights in Washington will be but an incremental step on the road to equality for a community that has been consistently denied equal protection under the law. Consider that only 18...

Weird Friends of the Court

AP Photo/Charlie Neibergall
(AP Photo/J. David Ake) 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...

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. Arizona couldn't verify his naturalization number and erroneously identified his driver's license as belonging to a non-citizen. Gonzalez's case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona's burdensome requirements are inconsistent with federal law and therefore illegal. The Supreme Court has dealt with Republican legislators' attempts to suppress voting before. In a highly dubious 2008 decision , the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the...

The Boehner Rule

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flickr/Talk Radio News Service A fter 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 Hastert Rule was coined during the speakership of Republican Denny Hastert, who said he would bring nothing to the floor of the House of Representatives unless a majority of the Republican conference supported it. As University of Miami political scientist Greg Koger explains, the logic behind such a rule is basically one of "an...

The Making of the "Other" Chicago

AP Photo/M. Spencer Green
AP Photo/M. Spencer Green A makeshift memorial at the site where 6-month-old girl Jonylah Watkins and her father, a known gang member, were shot on March 11. The girl, who was shot five times, died Tuesday morning. Her father, Jonathan Watkins, remains in serious but stable condition. J anuary 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. Hadiya Pendleton’s shooting death, which took place only a week after the 15-year-old honors student performed at the presidential inauguration, is the latest tragedy to reinforce the perception that Chicago is the murder capital of the nation. Pendleton was killed when a gunman opened fire on a group of high-...

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. Since its creation last year by the Pew Charitable Trusts and CFA Institute, the Systemic Risk Council —which is chaired by former FDIC head Sheila Bair and advised by Paul Volcker—has sought to keep up the pressure for financial reform. That's important because a) many of the rules mandated by Dodd-Frank haven't actually been written yet; b) Wall Street is working every day to weaken that law; and c) additional reforms, beyond Dodd-Frank, are still needed. Yet unfortunately, as Thomas Hedges wrote recently here in Policyshop, sequestration cuts are going to set back the entire process of financial regulation. The SEC and CFTC were already struggling to find the staff capacity to write mandated...

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 most important difference? The Halligan filibuster will have practical consequences. Brennan was confirmed by a 63-43 vote the day after Paul started his filibuster. The filibuster of Halligan, conversely, continues with no end in sight. Preventing Obama from getting any nominees confirmed to nation's second most important appellate court is a very important win for the Republican Party as well as a defeat for the country. Apparently, the dysfunction of the Senate has to continue so that the Republican-dominated D.C. Circuit can continue to make the...

The Internet's Patriot Act

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AP Photo/Mark J. Terrill, File “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,...

The Internet’s Patriot Act

flickr/IronCurtaiNYC
AP Photo/Mark J. Terrill, File “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,...

Gun Control’s Long Game

AP Photo/Mike Groll
AP Photo/Mike Groll Y ou 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...

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. Regrettably, the Supreme Court appears poised to eliminate one of the proudest achievements of American democracy. As Esquire 's Charles Pierce puts it , striking down Section 5 would constitute "the final victory of the long march against the achievements of the Civil Rights Movement that began almost before the ink dried on the bill in 1965." The most remarkable example of the contemporary Republican hostility to civil rights came ,...

Secret Wiretapping Cannot Be Challenged Because It's Secret

By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, t he 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 Court's 5-4 opinion in Clapper v. Amnesty International was, appropriately enough, written by Samuel Alito, who is more consistently hostile to civil liberties than any justice in at least half a century. The Court ruled that the journalists, organzations, and human rights lawyers bringing the suit lacked the "standing" to bring a lawsuit challenging FISA on 4th Amendment grounds. The American constitutional system...

The Glocks Are Falling! The Glocks Are Falling!

flickr/ Wisconsin Department of Natural Resources
Flickr/Alex P. Yeremenko T he 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. These objections are overblown. There is little question that Obama’s current proposals would withstand constitutional review. (I was one of about 50 law professors who signed a recent letter saying just that .) The reason is that a constitutional right is not violated every time it is...

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. That Georgia is about to send a mentally handicapped man to the death chamber is, while dismaying, not in itself surprising. What is unusual about the case, however, is that the Supreme Court issued a ruling in 2002 that would seem to make what Georgia is about to do plainly illegal. In his opinion for the Court in Atkins v. Viriginia , Justice John Paul Stevens wrote that mentally handicapped individuals were categorically excluded from the death penalty by the cruel and unusual punishment clause of the Eighth Amendment. Given Hill's low IQ and the fact that even the state's expert witnesses have recanted their earlier testimony that he was not mentally retarded, the execution of Hill would seem to be a clear violation of...

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