Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps, have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous.
I loved the Ninth Circuit decision yesterday, in part for all the reasons Garrett Epps outlines so brilliantly here. It was perfect. It didn't overreach. It was confined to California's very peculiar circumstances. As I wrote in The Nation last year, this is precisely what the LGBT advocates have been privately hoping for: a decision that did not make the broad claim that same-sex couples have a right to marry in every state across the country. The LGBT legal groups won't tell you this openly, but what they really want is for the carefully planned Gill, Pedersen, and Windsor challenges to the Defense of Marriage Act to hit SCOTUS first. Those cases don't ask for a federal ruling on our right to marry. Rather, they say: States have already declared these couples married. That's what states do. The federal government doesn't get to pick and choose which marriages it wants to recognize.
Super PACs are the breakout stars of the 2012 election cycle. Like one of Newt Gingrich's mistresses, they're technically independent of the candidates they support but can still besmirch a reputation. In recent weeks, Gingrich has called on Mitt Romney to disown statements made by the “millionaire friends” who've donated to his super PAC, while Newt himself took heat for an ad produced by a pro-Gingrich PAC slamming Romney’s record at Bain Capital.
Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals, has been called almost everything in the book. Conservatives slaver at the mention of his name; even liberals sometimes criticize his audacity. The Onion once ran a deadpan story reporting that he had “ruled the private celebration of Christmas unconstitutional ... ‘[i]n accordance with my activist agenda to secularize the nation.’”
Washington Post columnist E.J. Dionne argues against the Obama administration's laudable decision to require employer-provided health-insurance packages to cover contraception. The new rule, according to Dionne, is a "breach of faith" that the "administration should have done more to balance the competing liberty interests here." Dionne's argument is, however, extremely unconvincing.
The Supreme Court unanimously held Monday that the installation of a GPS device in a person's car constitutes a "search" under the Fourth Amendment (which prohibits "unreasonable searches and seizures”). This unanimity is somewhat misleading, however, as the Court split with respect to what theory of the Fourth Amendment should be applied going forward and left a crucial question unanswered.
Starting in August, women will no longer have to pay more than men for the prescriptions (the Pill, Viagra, Cialis) that enable them to have active sex lives. That was the big news this past Friday, when Department of Health and Human Services Secretary Kathleen Sebelius declared that almost* all employers must now pay for contraception in their health plans under the Affordable Health Care Act's requirement that insurers cover all preventive services. No co-pays. No deductibles.
“Hi. I’m Jerry. I’m a person,” said Jerry Greenfield, co-founder of Ben and Jerry’s Homemade Ice Cream, as he introduced himself to the crowd with an ingratiating smile. “Ben and Jerry’s Homemade Ice cream: not a person.” Everybody chuckled.
In her report about the recent oral arguments in a Texas redistricting plan that was created by a panel of three federal judges, Dahlia Lithwick noted a compromise floated by Justice Kagan:
Clement and Garza seem almost to agree on a Kagan-suggested compromise whereby the lower court starts again with the new Texas map, but Texas bears a burden of proof to show that each district isn’t unconstitutional. Garza says that if it keeps the burden of proof on Texas it would be “far more preferable.” Clement seems to concede that it’s better than the court-drawn maps.
Yesterday, on the same day that major websites like Wikipedia, Wordpress, Reddit, and Wired went dark to protest the Stop Online Piracy Act (SOPA), the Justice Department shut down Megaupload, one of the largest file-sharing sites on the Internet. The site’s seven founders were arrested in New Zealand and are accused of making $175 million in profits while costing copyright holders an estimated $500 million in revenue. They face up to 20 years in prison for violating international copyright laws.
The case of Corey Maples provides a disturbing look at the death penalty system in the United States and underscores how even people facing execution are often not represented by adequate counsel at any stage of the criminal process. In Maples’s case, the attorneys assigned to represent his appeals quit midway through the process, and yet the state of Alabama blamed Maples for his failure to comply with procedural requirements he had no way of fulfilling. Yesterday, the Supreme Court corrected this obvious mistake by ruling that Maples had a right to appeal in a 7-to-2 decision. But this case will leave the pervasive problem of bad legal representation in our criminal justice system essentially untouched.
Taking powerful new scientific evidence about the unreliability of eyewitness identification into account, last year the New Jersey Supreme Court established strict rules to determine when eyewitness identifications are unreliable enough to be inadmissible. In a case decided earlier this week, Perry v. New Hampshire, the Supreme Court had an opportunity to follow suit with a reconsideration of its own. Regrettably but not surprisingly, the Court instead decided to ignore the new evidence.
I normally try my best to ignore the latest Blair Witch film sting from conservative provocateur James O'Keefe, he of ACORN and Planned Parenthood fame. But O'Keefe's new gotcha video unfortunately dips its toes into my beat, so I'll briefly grant him some of the media attention he craves.
Combining a variety of conservative culture-war obsessions, Oklahoma voters in 2010 passed an initiative that would "forbid courts from looking at international law or Sharia Law when deciding cases." Today, the Tenth Circuit Court of Appeals ruled that the initiative violated the Establishment Clause of the First Amendment.