Law

Wedding Bells in Illinois?

(Flickr/Benson Kua)
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!) All of which is to say: here are two more little bright spots that show how fast the tide is changing, coming back in to wash away all the nasty old antigay state DOMA laws that piled up when the shockingly new idea of marrying same-sex pairs was first discussed in 1996, 2000, and 2004. Bright spot #1: Recently the ACLU and Lambda brought two...

Filibuster Reform Lies in the Voters

(Flickr / Cle0patra)
In 1906, journalist David Graham Phillips scored a best-seller with his book The Treason of the Senate . “The Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be,” Phillips wrote. There’s a good case that the “millionaire’s club” of 1906 was Audie Murphy compared to today’s Senate. The case against the Senate—and in particular against the misuse of the filibuster to paralyze the federal government—is brilliantly laid out in the Complaint filed last month by Common Cause in the federal District Court for the District of Columbia (It’s good: download it and read it now ). The complaint is a great service to public education. But the remedy Common Cause is seeking—judicial invalidation of part of Senate Rule XXII—is not only beyond the authority of the courts, but would, if granted, create a precedent worse than the disease it attacks. The Constitution gives each House the power to set its own rules, with no...

A Gun to the Debt-Ceiling Fight

(Flickr/zieak)
If Barack Obama turns out to be a one-term president, historians may mark the summer of 2011 as the moment his failure became inevitable. At that point, the new right-wing Republican House majority declared the national debt hostage and demanded Obama’s surrender to them on all points of domestic policy. When the debt-ceiling statute required authorization of a new federal borrowing limit, they refused to vote on the measure without massive cuts in federal spending and no increase in federal revenue. The crisis was averted by the appointment of an idiotic congressional “supercommittee” that was supposed to identify future cuts, matched with a set of “automatic” cuts that were to take effect if the “supercommittee” failed to come up with a compromise aimed at reducing federal debt. Not surprisingly, the “supercommittee”—perhaps better known as the “Clark Kent committee”—was unable to produce a compromise. The debt showdown, which paralyzed Washington for much of spring and early summer...

1st Circuit Rules DOMA Unconstitutional

Nancy Gill & Marcelle Letourneau, by GLAD
One of the most striking examples of the progress made by supporters of gay and lesbian rights can be seen with respect to the odious Defense of Marriage Act. The bill, which denied federal marriage benefits to same-sex couples and allowed states not to recognize same-sex marriages valid in other states, had been signed by the second-most recent Democratic president after passing both the House and Senate by veto-proof margins. A little more than a decade later, President Obama—even before his recent announcement declaring support for marriage equality—had refused to defend the constitutionality of DOMA in court . In an even more important sign of progress today, the worst provisions of the Defense of Marriage Act were ruled unconstitutional by a unanimous three-judge panel of the 1st Circuit Court of Appeal. And particularly since this case is nearly certain to end up in the Supreme Court, the fact that this panel included two Republican appointees is also important. Judge Michael...

I'm Married in Massachusetts—But Am I Married in the United States?

Oh, gosh, it's so confusing. I'm married when I visit my stepson's school. I'm not married when I file federal taxes. I'm married when I fill out forms at the doctor's office. I'm not married when I'm visiting my brother in Texas. Or am I? Yes, I do have a sense of humor about it, especially this morning. Conservative federal judge Michael Boudin—who served in Ronald Reagan's Justice Department, and was appointed to the First Circuit by George H.W. Bush—has written an extremely cautious opinion (for a unanimous court) striking down the Defense of Marriage Act's Section 3, which says that for federal purposes, marriage is between one man and one woman. Boudin writes repeatedly that the precedents are tricky and the final decision will have to come from SCOTUS--but in his mind, signs point to yes for my marriage. All the judges think DOMA is indefensible, or at least, that section 3 is. There was Judge Tauro's rhetorically soaring decision in this particular set of cases, Gill v. OPM...

How to Save the Internet—Again

Online organizing helped stop SOPA and PIPA, but how much staying power does the internet freedom movement have?

(Flickr/witness.org)
On January 18, the Internet went on strike. Tens of thousands of Web sites—including Google, Wikipedia, and Wordpress—went offline or blacked out their interfaces to protest the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Many feared the breadth of the proposed anti-piracy laws—which could force entire domains to shut down because of the actions of a small number of users—would be used to censor online content and chill innovation. Protestors sent millions of e-mails and placed calls. Organizers of the strike estimate that nearly one billion people were exposed to their message. PIPA and SOPA were tabled. It was, by all measures, an overwhelming success. But the larger legislative battles over Internet privacy and freedom are by no means over. Next week, the Senate is expected to take up a version of the Cyber Intelligence Sharing and Protection Act (CISPA), which passed the House in April. Unlike SOPA and PIPA, which dealt with intellectual property, CISPA and its...

27th Amendment or Bust

How the newest amendment to the Constitution was ratified, and why it's so hard to change the law of the land. 

(Flickr/The COM Library)
One afternoon in March 1982, an undergraduate student at the University of Texas named Gregory Watson was poking through the stacks of the Austin Central Library, researching a term paper he was going to write on the Equal Rights Amendment. He happened upon a book published by the Government Printing Office that included a copy of the Constitution, as well as several amendments that had been passed by Congress but not yet ratified by the requisite three-fourths of the states. One such amendment limiting Congress' ability to give itself a raise caught his attention. Over the following ten years, it would become Watson's obsession, his life, and ultimately—20 years ago this month—the 27th and most recent Amendment to the United States Constitution. While the story of its enactment is an encouraging testament to the individual citizen’s power to enact change, the amendment's legality remains a gray area for legal scholars and it sets a troubling precedent for other amendments to be...

Why Democrats Support the Drug War Status Quo

Medical marijuana for sale in California. (Flickr/Dank Depot)
Later today, I'll have a post up at MSNBC's Lean Forward blog explaining why the "Choom Gang" revelations from David Maraniss' new biography of Barack Obama didn't seem to make anybody mad (with the exception of libertarians who took the opportunity to make the entirely accurate point that Obama's Justice Department is vigorously prosecuting people for doing pretty much the same thing Obama did as a teenager, and if he had been caught he might have gone to jail and certainly wouldn't have grown up to be president). Briefly, it comes down to a couple of things: Obama had already admitted he smoked pot "frequently," so it wasn't much of a revelation; and around half of American adults have too, meaning they weren't going to be outraged. Furthermore, most of the reporters who would write about the story are probably in the pot-smoking half, making them less likely to treat it as something scandalous. But this raises a question, one posed by Jonathan Bernstein: Why do Democratic...

Far-Off State Capitals Are More Corrupt

(Flickr/kmillard92)
A new paper shows that state capitals located in less-populated areas are more likely to breed corruption. The paper , authored by Filipe R. Campante of Harvard University's John F. Kennedy School of Government and Quoc-Anh Doh of Singapore Management University, tested what seems to be a logical idea: when lawmakers are more out of sight, they can get into more trouble. Turns out that in this case, the logical idea is the right one. The authors found "a very robust connection" between corruption and capital location. They used several different measures of corruption and isolation and continued to get the same result. Isolated capital cities tend to pay high salaries to their governors and have smaller media outlets covering political happenings. The connection even has implications for the amount of money in campaigns: We look at how the amount of campaign contributions to state politics correlates to the concentration of population around the capital. As it turns out, we find a...

The War on Contraception Enters the Courts

WikiMedia Commons
Forty-three Roman Catholic plaintiffs—including the archdiocese of New York and the University of Notre Dame—have filed lawsuits alleging that the Obama administration's contraceptive coverage requirements violate the First Amendment and the Religious Freedom Restoration Act. In case there were any doubts about the political nature of the lawsuits or the unpopularity of this war on contraception, as Salon 's Irin Carmon points out , the Notre Dame lawsuit alleges repeatedly that it would be required to cover "abortifacients” or “abortion inducing” substances although the regulation explicitly excludes them (and the claim that emergency contraception induces abortion is erroneous.) That the lawsuit is cultural warfare, however, does not in itself mean that it is without merit. Should the courts take these claims seriously? Will they? On the first question, I have argued at length elsewhere that both the constitutional and statutory arguments should be rejected. To allow institutions...

Dharun Ravi Goes to Jail

A year and a half ago, Dharun Ravi pulled a stupid, clumsy, and cruel prank. He used his webcam to spy on his male roommate kissing another man, and tweeted about it. Three days later, his roommate, Tyler Clementi, jumped off a bridge to his death—and Dharun Ravi's stupid prank became the focus of national outrage about bullying. As I wrote here in March, my fear was that Dharun Ravi would become the scapegoat for a nation that is just awakening to how deadly anti-gay cruelty can be. You know what a scapegoat is, yes? Millennia ago, before the rural Hebrews transformed into the urban Jews—before the Babylonian Exile, in other words, where the Talmud was written, the Jewish equivalent of Christianity's New Testament—those Hebrews annually atoned for their sins by repenting and symbolically putting them all on a goat. The rabbi said prayers making the transfer. The community either killed the goat or sent it off into the wilderness to die. Poof, the community's sins were gone. But with...

A Plan to Privatize a State's Entire Male Prison System

(Flickr/Tim Pearce, Los Gatos)
It's been tough times for the prison privatization industry. The two biggest companies both have extra space thanks to a recent drop in the number of people sent to private prisons. The companies just can't seem to expand their share of the market. The poor guys really lost out when the Florida Senate killed a bill that would have privatized 27 prisons and displaced more than 3,500 workers. The lobbying was so aggressive, one senator with health problems actually had to get protection from her colleagues. Then there's the not-so-great press—a two-part series from NPR last year included particularly horrifying tales . All told, these poor private prison company execs have not had much to smile about. So imagine what joy they must have had when New Hampshire put out an RFP to privatize the state's entire prison system. That's right—the entire system. According to the New Hampshire Business Review , previous state debate on privatization didn't exactly win anyone's affection, and the...

Be Very Afraid

WikiMedia Commons
Jamelle's hot-off-the-presses cover story on how Romney will govern as a hardcore right-winger irrespective of what he "really" thinks is a must-read. And what's even worse is that this lesson applies beyond budget policy. To address one particularly important point, consider the Supreme Court. As of 2013, Ruth Bader Ginsburg will be an 80-year-old cancer survivor. Stephen Breyer will be 74. Anthony Kennedy will be 76. Replacing even one of these judges with an Alito-style reactionary would have a huge impact on the development of American law that only start with the explicit or implicit overruling of Roe v. Wade , and a Romney who served two terms would probably be able replace all three. Even one term of Romney would probably result in a Supreme Court in which Antonin Scalia—at least until he's replaced with a much younger and even more conservative justice—would have to turn to his right to see the median vote. Trying to downplay the possibility of Romney fixing an ultra-right-...

A State-Federal Standoff over the Death Penalty

(AP Photo/Charles Dharapak, File)
A principled governor invoking “state’s rights” to defy federal policy. Aggressive local officials overriding state decisions. A federal court angrily affirming its own power. An anguished dissent attacking a power-hungry Congress. United States v. Pleau has all the elements of a great federalism battle (including, by the way, largely symbolic stakes). But don’t expect to see Rhode Island Governor Lincoln Chafee’s “state’s rights” stand hailed by Republican conservatives: Chafee is blocking the federal government in order to show his disapproval of the federal death penalty. The result, decided May 7 by the First Circuit Court of Appeals, is now in the Supreme Court’s in-basket. Pleau deals with important issues of policy, morality, and history. But because this is the United States, the language of the dispute is that of federalism—a pastime that Professors Edward L. Rubin and Malcolm Feeley once dubbed “a national neurosis.” The case began on September 20, 2010, when Jason Wayne...

The Unecessary Radicalism of Citizens United

WikiMedia COmmons
One of the many striking things about the Supreme Court's infamous Citizens United decision is how poorly the facts of the case fit the extremely sweeping holding. The potential First Amendment issues involved with campaign finance regulation exist on a spectrum. Political editorials, even when published in corporate-owned media and attempting to influence the campaign, are obviously "pure speech" that can be restricted only in extraordinary circumstances. Direct donations to candidates, on the other hand, are further removed from pure speech and also raise serious problems of democratic equality, so the leeway that can be given to government to restrict them might be greater. Political advertising falls somewhere in the middle. Citizens United involved the suppression of a political campaign documentary about Hillary Clinton—something that doesn't neatly fit into the categories, but is closer to "pure speech" than being a campaign expenditure. While many progressives disagree, I...

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