Posted tagged ‘Law’

Get Me To The Church On Time

October 18, 2012

Good news out of the 2nd circuit. A second appeals court rules on DOMA:

We conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional. Judge STRAUB dissents in part and concurs in part in a separate opinion.

I know that Dinesh D’Souza is a boil on the ass end of a louse infesting Eric Cantor’s sheets, but still, the juxtaposition of his story with this gives me a chuckle.  And when you read the opinion, It Gets Better:  Dennis Jacobs, Chief Judge for the circuit and a George H. W. Bush appointee, writing for the majority, handed the House Bipartisan Legal Advisory Group (aka BLAG)* its collective head:

BLAG argues that, unlike protected classes, homosexuals have not “suffered discrimination for longer than history has been recorded.” But whether such discrimination existed in Babylon is neither here nor there. BLAG concedes that homosexuals have endured discrimination in this country since at least the 1920s. Ninety years of discrimination is entirely sufficient to document a “history of discrimination.”

More:

The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination…

David Lat, writing at Above the Law, pours an extra pinch of salt in BLAG’s wounds:

It would appear that the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, has now lost at least six cases in a row — and spent about $1.5 million doing so.

Your taxpayer dollars at work.

One last thought:  Lat points to commentary by Chris Geidner at BuzzFeed (where you can find the full text of the opinion) who notes what seem to me to be a couple of very important elements to the court’s ruling. For one, as Jacobs wrote:

Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.

And for another, perhaps yet more significant determination, Geidner writes:

Beyond striking down the law itself, the most significant development in today’s ruling is that the Second Circuit held that laws that classify people based on sexual orientation, like DOMA, should be subjected to a heightened form of scrutiny when courts examine the government’s claimed reasons for such laws. The holding that “intermediate scrutiny” applies makes the Second Circuit the first federal appeals court to do so. The First Circuit did not apply heightened scrutiny in its earlier decision striking down DOMA.

The Second Circuit, however, held:

“In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”

I Am Not A Lawyer, so I’ll leave it to those members of the commentariat that are to weigh in on the significance of those aspects of the ruling.  But naively, it seems like a big deal to me.

All of which to say:  good times.

And to celebrate such, how about a couple of tunes?  The first, sent to me by a member of the BJ community, is a  sweet (perhaps too much so for some of you jackals) love song, purposed now to support same-sex marriage rights in the various referenda up for grabs around the country:

And the second? Well, consider it an antidote to any excess of sentiment above:

*BLAG is, of course, hardly bipartisan.  With three GOP members to two Dems, it is the vehicle for the House leadership to bother themselves with what American citizens do in their private lives.  It took up this case after the Obama administration decided it could not defend DOMA’s constitutionality.

Image:  Augustus Leopold Egg, The Travelling Companions, 1862.

Chronicles of the Gutless, or When Did the GOP Become Such Cowards? Scott Brown edition

January 11, 2010

Just listened to the last debate in the MA Senate race and caught the exchanges between Scott Brown (R-Soundbite) and Martha Coakley (D).

Lots of stuff to notice — mostly that if I were a committed anti-abortion voter, I would  have no one to vote for in this election, as Scott Brown was for, against, and unsure of what he thought on the issue, especially around his proposal a couple of years back to permit hospital workers to refuse to inform rape victims of the existence of a morning-after contraceptive.  He sponsored the idea, then voted in favor of a bill requiring such information, and finally said he was for Roe v. Wade…or sort of.

I have no idea what he really thinks (and how he would vote), and I’m not sure he does either, but I do know that neither supporters nor opponents of women’s right to make their own medical decisions should have any warm and fuzzy feelings about the man right now.

I also liked the zinger that third party guy Joe Kennedy (obligatory no relation reference here) got off on Brown, noting how he’s against taxes now, but declined to support an anti-income tax measure in the run up to the last election.  I actually think that his was the right position at the time, but he sure is running as if he hopes no one remembers that moment of GOP apostasy now.

But all of that is just the secret sauce on top of what makes me think that Brown is truly in tune with the gutless heart of modern Republican “thought” (sic — ed).

That would be his stance on trying accused terrorists in civilian courts, as opposed to maintaining our version of a no-exit gulag beyond the reach of law.

He said, repeatedly, that he opposed trying such suspects in civilian court at — as he said over and over again — “taxpayer expense.”

The witlessness of that got me, of course:  these dudes aren’t a drain on the American public purse now, Mr. Brown?  You think that all those water bills and their three squares, Guantanamo style, come free?

But more deeply, when did the macho-er-than-thou “Mission Accomplished” GOP become so terrified of a handful of violent men (not to mention all those lumped in with the baddest guys who ended up there by accident, but that’s another story) that the mere thought that the rule of law might apply to their cases would send allegedly grown men and women reaching for their blankies?

That’s the rub, for me.  It has always seemed a fundamental mistake to dignify those who aim to blow up random children, women and men with the epithet “enemy” or “combatant.”

Our adversaries — at least  those who use overstuffed jockstraps as weapons — are not warriors. They are not soldiers to be dignified by any hint of equivalence with the men and women we have sent in harm’s way.  They are mere thugs, and they should be treated as such.

This isn’t mere semantics.

We have done nothing to serve the interests of al Qaeda or its kin as to acknowledge them to the world as enemies capable of inspiring fear.  What a recruiting tool, to enable some persuasive person to proclaim to young men that the world’s only superpower fears its “enemy combatants!”

Add to that the help we have given them as our leaders cowered and then masked their fear in the false bravado of torture.  Abu Ghraib was understood to be what it was: not an aberration, but an expression of the policy of the US government — driven by the fear evoked by the specter of global terror.

And now Scott Brown, with all the deep grasp of the issue that only service to Wrentham and posturing in the rump minority of the legislature of the Commonwealth of Massachusetts can bring, comes along and tells us that torture, and indefinite detention, and the suspension of habeas corpus and all the rest remains the only way to deal with the existential threat posed by this bunch of thugs.

Maybe — if we were truly weak, if we were a  fragile, illegitimate rump state, dependent on every last dirty trick of security-apparats to push off  the throes of disintegration.

But we are not.  We are the United States of America, and if that means anything anymore, after all the broken faith of the Bush years, then it means we are capable of using the law to protect and to punish those who have earned the penalty.

Scott Brown doesn’t think so.  His 30 years of military service seem not to have endowed him with spine, or much of a sense of the Constitution he has sworn to protect.  He’d rather cower, and leave those he fears in the cells forever.

Gutless.

We need better in a Senator.  We need someone who is not afraid of shadows, one who understands that the equal application of the law is a defense against those who threaten the idea of America — and not now, nor ever, our weakness.

My Massachusetts readers:  don’t forget to vote come Tuesday, 19 January 2010.

Image:  Georgios Iakovidis, “Cold Shower,” 1898


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