Law

Putting Marriage Rights to a Vote

The country's gradual movement toward marriage equality took a step further last week. Democrats in Iowa won a closely contested special election, which allowed the party to maintain their senate majority and essentially assured that no amendment to overturn same-sex marriage will be put to a vote until 2015 at the absolute earliest. That followed a New Jersey court's decision to hear a case that might replace the state's civil unions provision with full marriage rights. But a bit of bad news snuck through as well. Basic Rights Oregon—or BRO, a delightful acronym for the state's leading LGBT rights group—announced that they would abandon their goal of putting a pro-marriage measure on the ballot in 2012, with their sights now set on 2014. "It is not a question of if we will cross this threshold, but when," the group's board wrote in a release . "We have considered the possibility of putting this issue on the ballot for the 2012 election. However several factors, including the expense...

The Court Will Rule—and Then?

AP Photo/Alex Brandon
The Supreme Court’s decision today to take up the constitutionality of President Obama’s health-care reform in this session—they’ll hear oral arguments in March and rule by session’s end in June— means that the issue will be revived for voters just a few month before next November’s presidential election. This is probably good for Republicans no matter which way the justices rule. And, no matter which way the justices rule, I can’t see how this helps the Democrats. There are basically three ways the court could go. They could uphold the individual mandate; they could strike it down, which would essentially negate the rest of the law; or they could rule the issue can’t be litigated until 2015, when the federal government would levy the first penalties on persons who refuse to purchase insurance. Additionally, the court will rule on the important but still subsidiary issue of whether the feds can require the states to pick up additional Medicaid expenditures starting in 2016—but the...

Supreme Court to Rule on ACA in Middle of Election Season

Via the invaluable SCOTUSBlog , the Supreme Court announced today that it will be hearing challenges to the constitutionality of the Affordable Care Act (ACA) this term. The oral arguments will consolidate three of the anti-ACA lawsuits, and in addition to addressing basic questions of constitutionality, the Court will be considering the jurisdictional questions that could allow the Court not to issue a ruling on the merits next year. Given that in a high-profile case with important constitutional questions and a circuit split, the Supreme Court intervening is nearly inevitable. The upshot is that a decision on the ACA will be handed down right in the middle of a presidential election. Reflecting the importance of the case and the number of issues involved, oral argument will be 350 minutes rather than the usual 30 or 60. The Court will spend a full 90 minutes on the question of whether the individual mandate can be "severed" from the rest of the bill—that is, whether a ruling that...

Supreme Court to Hear Challenge to Affordable Care Act

Will the individual mandate survive?

It’s official; the Supreme Court will hear the a challenge to the Affordable Care Act, President Obama’s health care reform law. The Court’s decision is expected to come next June. Going by the tenor of conservative rhetoric and the decisions of lower courts, the key issue at hand is the “individual mandate,” which requires all Americans to purchase health insurance by 2014 or face financial penalties. Conservatives argue that the mandate is a gross overreach of federal power —by their lights, the Constitution doesn’t allow the government to tax “inaction.” Allowing the mandate to stand, they argue, would put the United States on a dangerous road toward unrestrained government. Indeed, in his ruling to uphold the individual mandate, Judge Lawrence Silberman of the DC Circuit Court of Appeals pointed out that while “the Government does stress that the health care market is factually unique,” it “concedes the novelty of the mandate and the lack of any doctrinal limiting principles.” As...

Why Tuesday? Because Republicans Said So

Earlier this week, The Washington Post 's Ezra Klein profiled the "Why Tuesday" organization. Here's how that group explains the history of our current election calendar: In 1845, before Florida, California, and Texas were states or slavery had been abolished, Congress needed to pick a time for Americans to vote. We were an agrarian society. We traveled by horse and buggy. Farmers needed a day to get to the county seat, a day to vote, and a day to get back, without interfering with the three days of worship. So that left Tuesday and Wednesday, but Wednesday was market day. So, Tuesday it was. In 1875 Congress extended the Tuesday date for national House elections and in 1914 for federal Senate elections. Of course the constraints that made people in the 1800s choose Tuesday no longer apply in the modern era. Without a bias for the status quo, there would be no reason to choose Tuesday over Wednesday or Thurday. Klein advocated for The Weekend Voting Act, a bill that would move and...

Q&A: Protecting Same-Sex Marriage in Iowa

AP Photo/Brian Ray
A little-noticed special election earlier this week in Iowa had far-reaching consequences for the future of marriage equality. Liz Mathis's victory will keep Democrats in the majority, ensuring that same-sex marriage will not be overturned anytime soon. The Prospect spoke with Troy Price, executive director of One Iowa, the state's leading LBGT-rights organization. Why was the race important, and how was One Iowa involved? The race was incredibly important because it was going to decide the outcome of who would control the senate. Being as that's the only chamber that is controlled by Democrats, it had huge implications for the future of public policy in the state. From the LBGT community's perspective, this was a very important race, because the senate is controlled by the fair-minded majority. We have been very supportive of them because they have been very supportive of us. They were able to stop the discriminatory anti-marriage amendment that was moving through the legislature. I...

In Which DOMA Crumbles Just a Little Bit More

Has anyone been trying to keep score at home on the many attacks on the Defense of Marriage Act ? There are so many different ways it could fall. Today’s news came from the Senate, where the Judiciary Committee voted in favor of Sen. Feinstein’s Respect for Marriage Act, referring it to the full body. The RMA would repeal DOMA, thereby enabling same-sex couples who are legally married in their home states would be treated as married by the federal government as well. (Six U.S. states and the District of Columbia currently marry same-sex couples; see the map here .) That means, for instance, that my wife would stop paying thousands of dollars in federal taxes for listing me on her health insurance; a New Hampshire man married to a Brazilian, say, could sponsor his foreign-born husband for legal residency or citizenship. The discussion in the committee was short, nothing like the full theater of the July 20 hearing on the bill, in which everyone said the same things as they did back...

Marriage Rights Safe in Iowa

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Iowa Democrats held on to a key state senate seat yesterday. Liz Mathis defeated Republican Cindy Golding by a 12-point margin, allowing Democrats to maintain their 26-24 majority in the chamber. If Golding had come out ahead, the two parties would have negotiated a power-sharing system, granting the GOP the leverage they would need to introduce their favored bills.* The result of this single election is a monumental win for same-sex marriage advocates. It means that Iowa's marriage law can't be overturned for at least the next five years. Unlike in other states, amending the state constitution in Iowa is a long, arduous task; it requires the legislature to pass the amendment in two consecutive sessions interspersed with a general election, then be passed by a public referendum. Even if Golding had won, 2014 would have been the earliest point a referendum could appear on the ballot. With Democrat Mike Gronstal—a staunch defender of the state's current marriage laws—still at the helm...

Sexual Assault Versus Harassment

So now there's a fifth allegation against Herman Cain—and we can see exactly why women have been loath to come forward and be dragged through the mud. I don't know what Cain did or did not in fact do to Sharon Bialek, or Karen Kraushaar, or to the other three women who've decided to protect their sanity and jobs by keeping their names private. I am sure that some dedicated reporters are doing their best to double-check the accusations—and since attorney Lin Wood is implicitly threatening the news media with the possibility of libel lawsuits, you can be sure that litigation-averse major media outlets will triple-check to see that every fact is sourced, checked, nailed down, and lawyered up before you see it in print or pixel. But all that aside, one misunderstanding of Sharon Bialek's allegations startled me. Let's review the allegation, as reported in The New York Times : In her statement to the press, Ms. Bialek said that she had been fired at the association after about a year...

Cruel and Unusual Idiocy

Can the government get around the Constitution by outsourcing its functions to private contractors?

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Last week, the Supreme Court heard oral arguments in Minneci v. Pollard , a case that involves cruelties inflicted on a prisoner that should be considered violations of the Eighth Amendment, which prohibits "cruel and unusual punishment." There is, however, an unfortunate catch. Because Pollard was held in a privately operated prison, both his jailers and the federal government are claiming that his constitutional rights could not have been violated. A Court decision accepting this argument would have devastating consequences given the increasing privatization of state and federal prisons. Jails could violate the rights of prisoners at will, operating outside of constitutional restraints. Richard Lee Pollard was being held on a 20-month prison sentence when he fractured both of his elbows. This was just the beginning of his litany of painful medical issues. The prison’s chief of security made him remove his sling and put on his jumpsuit, even though lifting his arms caused him...

New Orleans DA's Office Defends Suppressing Evidence -- Again

You may remember that in one of the lowest moments of the Roberts Court , a bare majority rejected a damage award given to John Thompson who was held in prison for 18 years for a crime he almost certainly didn't commit because the New Orleans DA illegally withheld evidence. Despite the fact that the conspiracy to withhold evidence involved multiple prosecutors over many years, under the supervision of a DA who was unable to even correctly articulate the relevant legal requirements, according to Justice Thomas there wasn't enough systematic evidence to hold the DA accountable. Well, in another amazing coincidence the New Orleans DA's office is back at the Court for having illegally suppressed evidence yet again: Donna R. Andrieu, an assistant district attorney in New Orleans, had the unenviable task at the Supreme Court on Tuesday of defending her office’s conduct in withholding evidence from a criminal defendant. She made the least of it. Her halting and unfocused presentation...

Mixed Results for Voting-Rights Referendums

Republicans have spent 2010 overhauling voter laws to design their ideal electorate. Last night, voters in Maine fought back, approving Question 1, which restores Election Day registration. It won easily by a margin of 60 percent to 40 percent. As I detailed in the November issue of the magazine, when Republicans gained control of Maine's legislative chambers and governor's office, they set their sights on building a permanent majority by passing restrictive voter laws. They failed to push a voter-ID bill through the legislature, but Republican Governor Paul LePage signed a repeal of Maine's Election Day registration this summer. Maine has allowed voters to register at the polls on Election Day for nearly four decades (with only two prosecuted cases of voter fraud in that time) and consistently placed near the top of the country in turnout as a result. Around 60,000 Mainers took advantage of the regulation for the 2008 election. Think tank Demos (full disclosure: Demos is the Prospect...

Is There a "Bradley Effect" for Abortion?

Amendment 26 supporter Sandy Comer puts out a campaign sign at the polls at the Chamber of Commerce in Oxford, Mississippi, on Tuesday, November 8, 2011. Mississippians go to the polls today for state and local elections, as well as referendums including the so-called personhood amendment, a referendum on whether to define life as beginning at conception. (AP Photo/Oxford Eagle, Bruce Newman)
Yesterday, Mississippi voters soundly defeated Amendment 26, an anti-abortion ballot initiative that would have altered the state's constitution to define personhood as beginning at fertilization. Going into the election, a survey from Public Policy Polling showed 45 percent of voters in favor, 44 percent opposed, and 11 percent undecided—much closer than the vote turned out to be. A personhood amendment like the one in Mississippi has never been enacted and would have had radical implications, even in a strongly pro-life state like Mississippi. Not only would it have banned all abortions without exception, but popular forms of contraception like the morning after pill, IUDs, and even the pill would have been outlawed as well. In addition, miscarriages could be prosecuted as murder or manslaughter. But Mississippians won't have to deal with any of that, because Amendment 26 lost 58 percent to 42 percent. The discrepancy between what the polls said going in and the results means that...

DC Appeals Court Upholds ACA—With a Republican Taking the Lead

The influential Court of Appeals for the District of Columbia has issued an opinion affirming the Affordable Care Act (ACA) constitutional. In itself, this is not surprising, as several other courts have done so. What is surprising is that the Court's opinion was written by Republican favorite Laurence Silberman. The conservative Reagan appointee notes that the "activity/inactivity" distinction hatched to argue that the individual mandate violates the Constitution has no basis in the Court's precedents, and under those precedents the ACA is clearly constitutional: Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible. Those limitations are quite inapposite to the constitutionality of the individual mandate, which certainly is focused on economic behavior–if...

Is Gay Marriage on the Line in Iowa?

It's Election Day, though most of the country won't notice. Beside a handful of referendums with wide-reaching consequences, there are few contested elections, and the two big-ticket contests—gubernatorial elections in Kentucky and Mississippi—aren't in question. But one small state Senate election in Iowa could have a significant impact on the LGBT community. Republican Cindy Golding is facing off against Democrat Liz Mathis in the state's 18th District. The special election was triggered when Republican Governor Terry Branstad appointed the incumbent (a Democrat) to a state board earlier this fall. What's so important about a single Iowa Senate seat? Democrats currently hold a 26-24 majority in the chamber, so the election will decide which party controls the legislative body. And if Golding wins, the Republicans will likely use their new majority to begin the process of repealing Iowa's same-sex marriage law. Since the Iowa Supreme Court legalized same-sex marriage rights in 2009,...

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