The California Supreme Court granted (cert? discretionary review? not sure how the state's system works) review of three lawsuits challenging the gay marriage ban.
I know nothing more about California law than what I've read in conjunction with this issue, but it seems like the lawsuits have a decent legal argument. Essentially, they're arguing that this is not just an amendment to the constitution, but a change in a legal right that the constitution guaranteed. That's a subtle distinction, but an important one: ballot initiatives can accomplish the former, but not the latter.
The problem is this: even if it's a valid and sound legal argument, it will still be looked at as an attempt to thwart the "will of the people." Of course, that's pure crap -- Prop 8 was passed with 51% of the vote, and maybe 50% of the eligible voters voted in the election. So it's the will of a quarter of the people.
That attack is also crap in another way: the courts are supposed to protect vulnerable minorities from majoritarian excesses. If the 25% of the California population that's still bigoted can use a loophole to change the legal status of citizens, that's a problem. And the courts are supposed to prevent that from happening.
Imagine if this were the 1960s, and Prop 8 forbade interracial marriage. Some of the same people who are against gay marriage now were against (and probably still are, though under the radar) interracial marriage.
Of course, it took a court case to put an end to the de jure prohibition against interracial marriage (Loving v. Virginia). It will probably take another court case to end the modern version of that hatred.
The current SCOTUS isn't likely to look favorably on such a case, but luckily for the Prop 8 challenge, it won't get the chance to rule: the Prop 8 lawsuits are purely a matter of state law, and SCOTUS has no jurisdiction there (unless the challenge is that state law violates the federal constitution, but that argument isn't being made).
California's Supreme Court to Take Up Gay-Marriage Ban - WSJ.com
Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts
Wednesday, November 19, 2008
Friday, November 14, 2008
Kitchy monuments and mummified pets: SCOTUS takes on Summum
An interesting case from Utah. Pleasant Grove City has a park it says is dedicated to its "pioneer heritage." To celebrate that heritage, it has a number of privately-donated monuments. There's a log cabin, a Mormon religious artifact, a monument to firefighters who died on Sept. 11 (an Eagle Scout's public service project -- not sure how that's related to pioneer heritage, but whatever), and a monument to the Ten Commandments.A weird (no really, it's weird) religious group called Summum wanted to put its own monument up in the park, right next to the 10 Commandments monument. Summum believes that before Moses came down the mountain with the Commandments, he received Seven Aphorisms from God. Apparently the Israelites weren't ready, so he hid the Aphorisms away and went to get the Commandments. But the Aphorisms have been passed down through history, and now they've appeared in Utah.
Anyway, the city, predictably, said "thanks, but no thanks" to that monument. Summum sued, and eventually won at the Court of Appeals. The city petitioned the Court for certiorari, and got it.
Oral arguments were a couple of days ago. You can read about them here and here.
The case boils down to this: if the Eagles monument and the Summum monument are private speech, then the city is engaging in viewpoint discrimination. If the city has “adopted” the monuments in the park, then the monuments are government speech — and government can say nearly whatever it wants. The problem with that is that what it’s saying here is “we think the 10 commandments are better than the seven aphorisms.” That constitutes an official statement of preference for one religion over another. That’s an establishment clause violation. There wasn’t an establishment question before the Court, but there was an establishment issue in earlier proceedings (it just wasn’t appealed). Procedurally it’s complicated, but I think the case will (should) get remanded for additional factfinding on the question whether the government speech (if that’s what it is) is itself a violation of the establishment clause.Law Blog - WSJ.com : Seven Aphorisms and the First Amendment: A Look at Oral Arguments
Read more in this WSJ summary and this NYT editorial.
Tuesday, September 4, 2007
The Principled Conservative
NYT profiles former DOJ White House legal adviser
I found the principled conservative with whom Bush could replace Gonzales. The problem, according to the Times, in its profile of Jack Goldsmith, is that there is no way Bush could hire him.
Goldsmith, a law professor at Harvard, is the former head of the office of Legal Counsel, which advises the White House on, inter alia, the extent of executive powers. As Jeffrey Rosen, the author of the Times piece and friend of Goldsmith, writes:
"[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, [Goldsmith] writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws."
So essentially, Goldsmith's opinions were the behind-the-scenes supports for some of the Bush gang's most nefarious and notorious policies, including the torture of detainees in the "war on terror."
Goldsmith, according to the profile, wasn't entirely all thumbs when it came to a rational analysis of a proposed exercise of executive power. Rosen describes in the article one instance in which Goldsmith didn't give his blessing to a proposed policy:
"Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington [then Cheney's chief legal adviser]. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: 'They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.'"
"They've never been told no." A more succinct indictment of the Bush administration's excesses has yet to be written. That sentence captures the arrogance with which Bush and his cronies have squandered American prestige and the good will of the immediate post-Sept. 11 environment by eschewing entirely the rule of law. The Bushies counted on Americans to trade a essential liberties for a little temporary safety. Maddeningly, that's exactly what we did, every time the issue came up. And Bush's team knew it.
“We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004."
The "unitary executive" theory of presidential authority espoused by the Bush gang has effectively squandered America's reputation with the rest of the world. The go-it-alone approach with which they approached their Iraq boondoggle has mirrored in their approach to domestic politics:
“The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book.
Ironic, since for seven years, Bush had an extremely acquiescent legislative branch, ready to roll over at the very threat of being made to appear "soft on terror."
The results of Bush's attempt to solidify the power of the executive branch have in all likelihood backfired with staggering brilliance. Rosen notes that future presidents, as opposed to enjoying more expansive executive authority, will find themselves hemmed in by ever more skeptical legislative and judicial branches:
“I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
It will be interesting to see, in only a couple of short years, what a federalist government premised on separation of powers looks like. Thanks to Bush, we're virtually assured that's what's coming.
I found the principled conservative with whom Bush could replace Gonzales. The problem, according to the Times, in its profile of Jack Goldsmith, is that there is no way Bush could hire him.
Goldsmith, a law professor at Harvard, is the former head of the office of Legal Counsel, which advises the White House on, inter alia, the extent of executive powers. As Jeffrey Rosen, the author of the Times piece and friend of Goldsmith, writes:
"[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, [Goldsmith] writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws."
So essentially, Goldsmith's opinions were the behind-the-scenes supports for some of the Bush gang's most nefarious and notorious policies, including the torture of detainees in the "war on terror."
Goldsmith, according to the profile, wasn't entirely all thumbs when it came to a rational analysis of a proposed exercise of executive power. Rosen describes in the article one instance in which Goldsmith didn't give his blessing to a proposed policy:
"Several hours after Goldsmith was sworn in, on Oct. 6, 2003, he recalls that he received a phone call from Gonzales: the White House needed to know as soon as possible whether the Fourth Geneva Convention, which describes protections that explicitly cover civilians in war zones like Iraq, also covered insurgents and terrorists. After several days of study, Goldsmith agreed with lawyers in several other federal agencies, who had concluded that the convention applied to all Iraqi civilians, including terrorists and insurgents. In a meeting with Ashcroft, Goldsmith explained his analysis, which Ashcroft accepted. Later, Goldsmith drove from the Justice Department to the White House for a meeting with Gonzales and Addington [then Cheney's chief legal adviser]. Goldsmith remembers his deputy Patrick Philbin turning to him in the car and saying: 'They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.'"
"They've never been told no." A more succinct indictment of the Bush administration's excesses has yet to be written. That sentence captures the arrogance with which Bush and his cronies have squandered American prestige and the good will of the immediate post-Sept. 11 environment by eschewing entirely the rule of law. The Bushies counted on Americans to trade a essential liberties for a little temporary safety. Maddeningly, that's exactly what we did, every time the issue came up. And Bush's team knew it.
“We’re one bomb away from getting rid of that obnoxious [FISA] court,” Goldsmith recalls Addington telling him in February 2004."
The "unitary executive" theory of presidential authority espoused by the Bush gang has effectively squandered America's reputation with the rest of the world. The go-it-alone approach with which they approached their Iraq boondoggle has mirrored in their approach to domestic politics:
“The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith concludes in his book.
Ironic, since for seven years, Bush had an extremely acquiescent legislative branch, ready to roll over at the very threat of being made to appear "soft on terror."
The results of Bush's attempt to solidify the power of the executive branch have in all likelihood backfired with staggering brilliance. Rosen notes that future presidents, as opposed to enjoying more expansive executive authority, will find themselves hemmed in by ever more skeptical legislative and judicial branches:
“I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
It will be interesting to see, in only a couple of short years, what a federalist government premised on separation of powers looks like. Thanks to Bush, we're virtually assured that's what's coming.
Tuesday, August 28, 2007
Bye-bye, Gonzo
The House Lawyer Departs - New York Times
It's one small step for man... one giant leap for the Constitution. Well, probably not giant. But certainly significant.
It's about time Alberto Gonzales resigned. The "loyal Bushie" has managed, in a rather short tenure, to do serious and lasting damage to the Constitution, specifically the Bill of Rights. From the beginning of his time as the titular monarch of the Justice Department, his name has been associated with projects and policies representing a complete departure from American values - indeed, from the rule of law.
The torture memo (with its classic line: "the new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners...") he co-authored was despicable. Spying on Americans without authorization from the FISA courts (an incredibly low hurdle) was appalling. Arguing for the suspension of the Geneva convention and supervising the torture of detainees at Guantanamo was repugnant. The firing of US Attorneys for the most thinly veiled political reasons would have been amusing if the consequences weren't the destruction Justice's independence, not to mention the careers of the Attorneys themselves.
An NPR commentator observed last night that President Bush tends to let staff situations fester until, at the brink of their becoming gangrenous, he is forced to resolve them. Gonzales' predecessor, John Ashcroft, was the target of similar attacks. Bush defended Don Rumsfeld, his Defense Secretary, and his ludicrous and disastrous reversal of the Powell doctrine of overwhelming force, until irreparable harm had been done to the US war effort. That's not to begin to address the fool's errand of the war in the first place.
Another Bush crony, Harriet Miers, was vaulted into contention for a seat on the high court with a laughable lack of credentials. The list goes on. (Rove, anyone?)
The Times editorial, supra, suggests that Bush nominate someone of unimpeachable character and ability to begin the arduous task of rebuilding the credibility of the Justice Department. Let's hope he can do so. Current speculation that Michael Chertoff, current head of Homeland Security, might be Bush's pick. That's predictable -- he proved his loyalty, and his incompetence, following the Katrina disaster. But the country deserves better. Surely there must be some respected conservative that Bush can nominate. Surely he'll want to take this opportunity, with a year and a half left until he rides off into the sunset of history, to attempt in some small measure to improve his horrendous legacy. But the smart money is that Bush will nominate yet another incompetent, committed insider who will continue Bush's assault on the fundamental fabric of American democracy.
So long, Alberto Gonzales. Good riddance.
It's one small step for man... one giant leap for the Constitution. Well, probably not giant. But certainly significant.
It's about time Alberto Gonzales resigned. The "loyal Bushie" has managed, in a rather short tenure, to do serious and lasting damage to the Constitution, specifically the Bill of Rights. From the beginning of his time as the titular monarch of the Justice Department, his name has been associated with projects and policies representing a complete departure from American values - indeed, from the rule of law.
The torture memo (with its classic line: "the new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners...") he co-authored was despicable. Spying on Americans without authorization from the FISA courts (an incredibly low hurdle) was appalling. Arguing for the suspension of the Geneva convention and supervising the torture of detainees at Guantanamo was repugnant. The firing of US Attorneys for the most thinly veiled political reasons would have been amusing if the consequences weren't the destruction Justice's independence, not to mention the careers of the Attorneys themselves.
An NPR commentator observed last night that President Bush tends to let staff situations fester until, at the brink of their becoming gangrenous, he is forced to resolve them. Gonzales' predecessor, John Ashcroft, was the target of similar attacks. Bush defended Don Rumsfeld, his Defense Secretary, and his ludicrous and disastrous reversal of the Powell doctrine of overwhelming force, until irreparable harm had been done to the US war effort. That's not to begin to address the fool's errand of the war in the first place.
Another Bush crony, Harriet Miers, was vaulted into contention for a seat on the high court with a laughable lack of credentials. The list goes on. (Rove, anyone?)
The Times editorial, supra, suggests that Bush nominate someone of unimpeachable character and ability to begin the arduous task of rebuilding the credibility of the Justice Department. Let's hope he can do so. Current speculation that Michael Chertoff, current head of Homeland Security, might be Bush's pick. That's predictable -- he proved his loyalty, and his incompetence, following the Katrina disaster. But the country deserves better. Surely there must be some respected conservative that Bush can nominate. Surely he'll want to take this opportunity, with a year and a half left until he rides off into the sunset of history, to attempt in some small measure to improve his horrendous legacy. But the smart money is that Bush will nominate yet another incompetent, committed insider who will continue Bush's assault on the fundamental fabric of American democracy.
So long, Alberto Gonzales. Good riddance.
Tuesday, August 7, 2007
What's the baseline?
The New York Times has an article about several universities in Michigan and elsewhere installing footbaths for the use of Muslim students, whose religion dictates that prior to their quince-daily prayers, they must wash their feet. It seems that some students had been washing their feet in the sinks in the bathrooms, resulting in wet floors and sinks pulling away from the walls.
The question being raised by conservative bloggers and others is whether the expenditures by the public universities (some of the units cost $25,000 each) constitutes an unconstitutional (no pun intended) establishment of religion.
On its face, the answer to this question seems to be "of course." The state, through its agents, is building fixtures specifically for the use of a single religious group (statements about lacrosse players washing their feet and janitors filling buckets notwithstanding). But as usual, this question is much more interesting.
Some Muslims have raised a valid point that the schedule of every public school makes accommodations for Christmas, by definition a Christian holiday. So any thoughts of the state's non-intervention into religious activities are illusory.
I'm not suggesting a radical re-scheduling of school calendars nationwide. I think it's pretty obvious that the schedules as they are work to the benefit of Christians, but by this point, after 200+ years of dependence on such schedules, changing them would do more harm than good. It's important though, to realize that the current status quo does support an establishment of religion. Since we can't change at this point, let's accept it as the current baseline.
If that's the baseline, then any additional accommodations for a particular religion are unconstitutional. That's not to say that government cannot make changes to get out of the way of religious practices; it must allow citizens to practice their religions unencumbered. It may not prohibit individual citizens (or groups of them) from exercising their religious views. It may not prohibit girls and women from wearing the hijab; it may not prevent students from holding prayer meetings.
But it may not go out of its way, above and beyond the established baseline, to support a particular religion. It may not erect monuments to the Ten Commandments on public property, and it may not build facilities to aid any particular religious practice. In other words, no publicly-funded footbaths.
So then. Must universities let students wash their feet in the sink? Maybe. They certainly can't prevent students from washing their feet, if that's what their religion requires. Obviously there's the potential for a slippery slope here (what if my worship of the Flying Spaghetti Monster dictates that I play Four Square in a study lounge? Must a university let me practice my religion?), but let's table them for the time being. It's not clear, though, that they must allow students to wash their feet in sinks not designed for that purpose, especially if doing so creates a legitimate public danger (it's no stretch to imagine someone clipping and breaking their neck washing their feet in a sink; is the school liable?). Can the students wash their feet in any other manner? Can they, for example, use the showers without too much trouble? If so, then there's no reason the school can't forbid them from using the sink, simply for their own safety. If not, then there's an argument for building the footbaths.
But seriously: $25,000? That's the cost of several full scholarships at most state schools.
The question being raised by conservative bloggers and others is whether the expenditures by the public universities (some of the units cost $25,000 each) constitutes an unconstitutional (no pun intended) establishment of religion.
On its face, the answer to this question seems to be "of course." The state, through its agents, is building fixtures specifically for the use of a single religious group (statements about lacrosse players washing their feet and janitors filling buckets notwithstanding). But as usual, this question is much more interesting.
Some Muslims have raised a valid point that the schedule of every public school makes accommodations for Christmas, by definition a Christian holiday. So any thoughts of the state's non-intervention into religious activities are illusory.
I'm not suggesting a radical re-scheduling of school calendars nationwide. I think it's pretty obvious that the schedules as they are work to the benefit of Christians, but by this point, after 200+ years of dependence on such schedules, changing them would do more harm than good. It's important though, to realize that the current status quo does support an establishment of religion. Since we can't change at this point, let's accept it as the current baseline.
If that's the baseline, then any additional accommodations for a particular religion are unconstitutional. That's not to say that government cannot make changes to get out of the way of religious practices; it must allow citizens to practice their religions unencumbered. It may not prohibit individual citizens (or groups of them) from exercising their religious views. It may not prohibit girls and women from wearing the hijab; it may not prevent students from holding prayer meetings.
But it may not go out of its way, above and beyond the established baseline, to support a particular religion. It may not erect monuments to the Ten Commandments on public property, and it may not build facilities to aid any particular religious practice. In other words, no publicly-funded footbaths.
So then. Must universities let students wash their feet in the sink? Maybe. They certainly can't prevent students from washing their feet, if that's what their religion requires. Obviously there's the potential for a slippery slope here (what if my worship of the Flying Spaghetti Monster dictates that I play Four Square in a study lounge? Must a university let me practice my religion?), but let's table them for the time being. It's not clear, though, that they must allow students to wash their feet in sinks not designed for that purpose, especially if doing so creates a legitimate public danger (it's no stretch to imagine someone clipping and breaking their neck washing their feet in a sink; is the school liable?). Can the students wash their feet in any other manner? Can they, for example, use the showers without too much trouble? If so, then there's no reason the school can't forbid them from using the sink, simply for their own safety. If not, then there's an argument for building the footbaths.
But seriously: $25,000? That's the cost of several full scholarships at most state schools.
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