Musing's musings

One of these things is not like the others

In an historic ruling today, Judge Vaughn Walker struck down California's Proposition 8 as unconstitutional:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

In an exhaustively researched, well-reasoned, and thoroughly sourced 138-page opinion, Judge Walker found that the proponents of Proposition 8 had utterly failed to make even an elementary case for their position. They could not even demonstrate a rational basis for their claims, the lowest possible standard of review in federal jurisprudence:

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.

So what's next?

The Supreme Court ruled 5-4 today that corporations' right to free speech (in the form of campaign contributions, anyway) cannot be "abridged" by the Federal Elections Commission. This decision is but the latest in a century-long line of cases that effectively treats corporate entities as persons. So, to borrow a rhetorical device from the conservative majority that handed down this piece of drivel today, how long is it going to be until the Supreme Court recognizes a corporation's right to marry? (And how will they decide which corporations are male and which are female, since the federal government only recognizes "opposite" marriages?) Will the same five justices grant certiorari when a corporation is sentenced to death? (And, if they don't, how will the execution be carried out?)

I've already seen one call for a constitutional amendment to overturn this unwise decision by the Roberts court. I've also seen a couple more calls for Congress to pass legislation to undo the worst bits of it. But I have a simpler and quicker solution. If corporations are going to be recognized as persons for the purpose of making campaign contributions, then simply pass a law requiring them to adhere to the same contribution limits as everybody else: $2,400 per candidate per election, $30,400 to a national party committee per year, $10,000 per year to state, local, and/or district committees (combined), and $5,000 to any other committee.

On the public...and options

Apologies for my long absence. To make a long story short, too much to do, too much to think about, too much that makes me angry, and not a lot of energy for blogging.

Several of the things that have been making me angry and giving me food for thought are coming together in this post. I was flabbergasted this past weekend to see that more than forty so-called Democrats cast their votes for the Stupak amendment to the health insurance reform bill (to give it its proper name: it isn't reforming health care, it's reforming health insurance--and that just barely). Among the more common rationalizations and excuses offered for those votes is the notion that people shouldn't be asked to support, through their tax dollars, things which they personally do not approve of.

The thing that burns my onion is that the only time anyone ever seems to think that's a good or an important idea is when the matter in question is allowing men to control what a woman does with her body (i.e., abortion). It's not an altogether unreasonable idea, but before I could get behind it as a principle of government, it would have to apply to everything that our taxes fund.

For example, earlier this evening the Commonwealth of Virginia executed judicially murdered John Allen Muhammad, who was one of the two snipers who terrorized the Washington, D.C. area seven years ago last month. That's certainly something I don't support, and that I don't like to think about funding with my taxes. Another thing that was boosting my blood pressure was the tenor of some of the comments on Muhammad's pending execution that I encountered on allegedly progressive web sites: comments to the effect that he deserved what he was going to get, that he was worthless, and similar drivel that I would have expected from a right-wing site, but not at places where I spend time online.

One of those comments argued that unless one had been part of the community that Muhammad and his accomplice Lee Boyd Malvo terrorized through random violence, one was somehow not entitled to have or to express an opinion about what would, or would not, bring closure to the families of the victims. As I pointed out in response to that comment, this is precisely why we have a justice system. We do not allow the victims of crimes (or their relatives) to determine the fates of those charged with committing crimes against them, because they lack the necessary objectivity.

I won't be going to California any time soon

Yes, the outcome was what I anticipated it would be: upholding Proposition H8, but also upholding the 18,000 marriages that took place before it was approved. That still doesn't mean I'm inclined to do anything that supports the ignorant people who voted (albeit narrowly) in favor of that bigoted piece of misguided legislation.

I haven't had a chance to read all of the 186-page opinion (I managed to download a copy before the servers crashed), but I have to say I'm not thrilled by the Court's reasoning thus far. And I'd love to see how they managed to twist themselves into pretzels to come up with a ruling that (a) upholds the validity of the 18,000 existing same-gender marriages and (b) at the same time upholds the constitutional amendment that says, quite plainly, that only opposite-gender marriages will be considered valid in California.

The silver lining in this particular dark cloud is that the decision is likely to trigger an appeal to the federal courts, which could poke our allegedly "fierce advocate" of a president into taking some real action on getting rid of DOMA at the federal level so those 18,000 California marriages might mean something in the other 49 states even if they don't mean anything where they were performed. And I do think California voters will be voting on this question again in 2010, though hopefully this time those of us who recognize that separate most definitely is not equal will do a better job of presenting our case and pointing out just how many lies and half-truths the other side is putting out there.

But until this odious claptrap is removed from the California lawbooks, I won't voluntarily be setting foot in that state.

Is that so, Senator?

The presumptive Republican nominee for president, Senator John McCain, speaking to around 1,500 people in New Jersey today, opined that yesterday's Supreme Court decision (PDF link) affirming the right of detainees in Guantanamo Bay to habeas corpus relief in the U.S. courts was one of the worst ever handed down:

The United States Supreme Court rendered a decision yesterday that I think is one of the worst decisions in history.

O rly? Worse even than, say, any of these greatest hits?

• Dred Scott v. Sandford (1857), in which the Chief Justice of the United States, Roger B. Taney, wrote that black people were "...beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."
• Plessy v. Ferguson (1896), in which the Court, virtually unanimously (save for the brave dissent of Justice Harlan) upheld the constitutionality of segregation, giving us the infamous "separate but equal" doctrine that prevailed until the civil rights era of the 1960s.
• Buck v. Bell (1927), in which Oliver Wendell Holmes (of all people!) wrote for a virtually unanimous Court that compulsory sterilization of the mentally handicapped was constitutional, closing his argument with the infamous and iniquitous phrase, "Three generations of imbeciles are enough."
• Korematsu v. United States (1944), which upheld the internment of American citizens and lawful permanent residents of Japanese descent without ever proving they had committed any crime.
• Bowers v. Hardwick (1986), in which an (arguably senile) Justice Byron White and a 5-4 majority upheld the right of the government to criminalize consenting sexual behavior in private between persons of the same gender.
• Bush v. Gore (2000), the infamous 7-2 per curiam decision that handed the presidential election to the Boy Who Won't Be King Much Longer, and began the eight-year nightmare which has been the Hedgemony. The justices were so embarrassed by their decision in that case that they refused to sign their names to it.

"Don't ask, don't tell": Don't keep it

According to Agence-France Presse, a federal appeals court in Boston has thrown out Major Margaret Witt's lawsuit challenging the Pentagon's (in)famous "don't ask, don't tell, don't pursue" policy. The court, striking down a previous ruling by a San Francisco appeals court (and I'm dying to know how an appellate court in Boston has jurisdiction over an appellate court in San Francisco--but this one is headed to the U.S. Supreme Court as sure as the sun rises in the east, unless there's some awfully quick fixin' done on Capitol Hill, about which I am, shall we say, less than entirely sanguine), argued that the courts owe "special deference" to Congress on matters regarding military policy.

That deference is quite traditional. It is, I would argue, equally wrong-headed, at least in some circumstances. I would not expect a court to get involved in a dispute, say, between a battalion commander and his or her superior officer about which was the correct strategy to employ to achieve a given tactical objective. But when it comes to something as fundamental as the right of any citizen to serve in this nation's armed forces without being discriminated against on the basis of any invidious characterization, that's another kettle of fish entirely. And that, ultimately, is exactly what Major Witt's lawsuit is about.

The Pentagon itself admitted, not long after the policy was implemented in the early 1990s, that it was fundamentally wrong-headed. That fact has been amply and repeatedly reiterated in the nearly two decades since then, each and every time we hear about another qualified officer or linguist or servicemember being kicked out--in what the Hedgemony is forever proclaiming to be a time of war--for the simple and irrelevant fact that s/he is sexually attracted to members of the same gender.

Big fat hairy fuckin' deal. Most of our major defense partners allow openly gay or lesbian individuals who are otherwise qualified to serve in their armed forces. They don't report discovering mass orgies in the gang showers, or massive desertions (or even requests for transfer) when "the unit" discovers "one of them" in its ranks. The world has not, to the best of my knowledge and belief, come to an end--and I think we are on safe ground in concluding that it will not do so should the United States decide to stop wasting valuable personnel whom it desperately needs in uniform, just because those individuals happen to be gay or lesbian or bisexual.

California Supreme Court overturns ban on gay marriage

In a 4-3 ruling this morning, the California Supreme Court overturned the state's ban on gay marriage on the grounds that domestic partnerships constitute a separate and unequal second-class status with regard to the option to marry that is afforded to opposite-gender partners. (The full opinion is available as a PDF file on the court's site.)

I'm still reading the opinion. I may have more to say later.

And the Lord did grin...

A federal jury in Maryland has handed down an $11 million judgement against Fred Phelps and his rabid band of haters, after the father of one of the soldiers at whose funeral the Phelpsoi protested filed suit against them. The jury awarded $2.9 million in compensatory damages, $6 million in punitive damages, and an additional $2 million for emotional distress. The haters, of course, are planning to appeal--and they do have some grounds, it grieves me to have to say.

Before I go any further, let me be 100% crystal clear about a couple of things. First, I'm not a lawyer and I don't even play one on TV. I'm just an educated layman who's spent some time reading up on First Amendment issues and caselaw, who also happens to have a library degree and know a little something about research and the interpretation of texts.

Second, I am of the firm conviction that, in the unlikely event that God actually hates anything or anyone, it is far more likely to be Fred Phelps and his sick, twisted notions about God than it is anything else. Chances are pretty good, from where I sit, that if Fred Phelps is sure God's agin' it, God is probably for it. And while I'm doing my level best to be a man of peace, for Fred Phelps and his band of boobs it wouldn't take much to have me singing an Amen to the prayer famously expressed by Capt. Edmund Blackadder at the end of Episode 2 of Blackadder Goes Forth:

Henceforth, I shall nightly pray to the God who killed Cain and squashed Samson that He comes out of retirement and gets back into practice on the [lot of them].

I do not think that word means what you think it means, Mr. Chief Justice

So the Supreme Court ruled yesterday in two First Amendment cases. The first upheld the right of corporations and unions to subvert the political process through misleading so-called "issue ads" inside the windows set by the McCain-Feingold campaign finance law. The second dealt with the case of a student who was disciplined for holding up a banner reading Bong Hits 4 Jesus.

Both decisions were disappointments, and both were 5-4 split decisions, with the two new conservative nominees, Chief Justice Roberts and Justice Alito, tipping the scales in favor of a radical departure from the court's previous decisions in both lines. I would further argue, however, that the two decisions offer a perfect illustration of the intellectual bankruptcy of the neo-conservative movement.

The money quote from the McCain-Feingold case was cited by the New York Times and NPR that I know of. I'm sure others carried it as well. In his opinion, the chief justice wrote that "Where the First Amendment is implicated, the tie goes to the speaker, not the censor."

That's actually not a bad rule of law. When a fundamental civil right is in question, the courts in any just society ought to come down on the side of the right whenever possible.

The problem I have with those words in the mouth of the chief justice is that if he truly believed them, he would have to have voted the other way on Morse v. Frederick. There, too, the First Amendment was implicated. But in that case, the chief justice decided to award the decision to the censor, not to the speaker.

True, the cases are not exactly parallel. The appellee, Joseph Frederick, was still in high school when he unfurled his banner at a school-sponsored rally for the passage of the Olympic torch through his hometown in Alaska. He was, however, 18 years of age or nearly so at the time, and he was standing on a public sidewalk where a reasonable bystander would have been hard-pressed indeed to connect either the young man or his sign with his school. And, as even the chief justice admitted, the message on his sign was "cryptic."

All of those considerations lead me to believe that the Court should have followed its brand-new precedent in the McCain-Feingold case and awarded the former student the damages he sought following his suspension from school and the consequent loss of his father's job. The chief justice, however, demurred on the grounds that the school principal's construction of "Bong Hits 4 Jesus" as somehow being a pro-drug message was not per se unreasonable.

I suppose one might be able to reach such a conclusion. If one were a typically drug- and vice-obsessed conservative. Perhaps. Mr. Frederick's banner did not advocate for the legalization or the use of any drug. Indeed, one has to read into the phrase "bong hits" to arrive at any kind of a drug message at all. To go from there to advocacy, one would have to imply a verb that is not even present in the sign's message.

A far more plausible construction, it seems to me, is the one the author thereof himself wanted to put on it--a catchy, funny phrase that he thought would guarantee at least a brief appearance on the television coverage of the torch relay. The fact that he was for all intents and purposes a legal adult at the time, and that he made his banner and displayed it off of school grounds, should, by my lights, have excused him from the school's tutelage on the occasion. It would have been different had he tried to hang that banner above his locker on school grounds, but he did not do so. Given that there was virtually no way to associate the young man standing on a street corner holding a quirky banner with that particular school, I think it stretches credibility (to say nothing of the law) to suggest that the school should still have been able to exercise quasi-parental authority over him: especially since he broke no laws by doing what he did.

Yes, he was technically attending a school-sponsored function. But attendance at that function was not required, and no attempt was made either to take attendance or to regulate the students who chose to attend in any way. The courts have held that schools have some enhanced rights to restrict the free expression of their students when that expression poses a problem or creates a diversion from the educational mission of the school. But I have a hard time seeing how anyone could reasonably argue that the events of the instant case posed anything like such a disruption.

And so I am disappointed. It would appear, at least based on the jurisprudence handed down by the highest court in the land yesterday, that corporate persons who do not technically enjoy civil rights are now freer than actual persons who do enjoy such rights. And that's just plain wrong.

Let's stretch this metaphor a little

As you may or may not be aware, today was the 2007 Day of Silence, "...an annual event held to bring attention to anti-LGBT bullying, harassment and discrimination in schools. Students and teachers nationwide will observe the day in silence to echo the silence that LGBT and ally students face everyday" (from the linked web site). I only knew that because as I was on the way to the first of my three back-to-back-to-back meetings today, a student handed me a flyer as I walked across the commons.

I couldn't participate because (a) I've been so bloomin' busy I didn't have time to notice the event was scheduled for today, and (b) I had three back-to-back-to-back meetings today, plus a whole lot of other conversations relevant to my job. However, I think stretching the "day of silence" metaphor might just be the best possible course of action for this country and its citizens to take in the wake of a great many highly stressful and emotionally charged events in the recent past.

I am by turns appalled and amazed at the number of lame, half-arsed, half-baked, hurtful, and just plain stupid things that have been said in the wake of the Virginia Tech shootings--and not just by the conservatives--such that I would welcome a moratorium on any further discussion of the issue, in any forum, by anyone not directly involved in investigating it or directly impacted by it. As my fellow liberal blogger Bryan has noted on several occasions, we're not going to know the full details about the wherefores and the whys behind the Virginia Tech shootings for quite a long time--if ever. Why, in the name of Holy Wisdom, would we want to start leaping to conclusions on the basis of very little evidence, and that of highly questionable provenance and credibility?

And while I didn't hear the remarks to which Virginia Governor Tim Kaine alluded when he said that he'd let his Irish temper get the best of him, I echo his disgust with groups attempting to use the shootings to advance their own political agendas. And, like Gov. Kaine, that goes for me whether the agenda is one I oppose (relaxing gun laws to allow more concealed carry permits, for example) or one which I generally favor (making gun laws tougher, or getting out of Iraq).