Archive for the ‘Supreme Court’ Category
I received this warm and fuzzzy e-mail about gay marriage coming to DC. I’m happy about the outcome. My problem is that the “aw shucks” POV is unlikely to convince anyone who is not already inclined to agree with the position.
What I believe will be more compelling is for people to watch the broadcast and/or read the transcript of Bill Moyers Journal for February 26, 2010. The legal adversaries in 2000’s Bush v. Gore Supreme Court case — Theodore Olson and David Boies, “one conservative and one liberal — have teamed up to make the constitutional case for same-sex marriage.” And the point that is made repeatedly is that their support is based on the rule of law.
The two lawyers are mounting “a well-financed legal challenge to Proposition 8, California’s 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come.”
“The case they’ve brought, Perry et al v. Schwarzenegger et al, has created a major stir, with some advocates of same-sex marriage worried that they are bringing the case too soon, that a loss at the Supreme Court could set back the movement for same-sex marriage by years. Olson argues that waiting for civil rights is not an option:
In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts. Secondly, when people said, ‘Maybe you should be waiting. Maybe you should wait until there’s more popular support.’ Our answer to that was, ‘Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their Constitutional rights in California?’
Earlier, to this basic point:
TED OLSON:… People told Martin Luther King, “Don’t do it. The people aren’t ready.” And Martin Luther King responded, “I can’t wait. I’m not going to make people wait.” And when people told Martin Luther King, “You may lose.” He said, “The battles for civil rights are won ultimately by people fighting for civil rights.”
And one more thing. When the Supreme Court had made the decision in Loving versus Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it’s only what? 40 years later? 40 years later we think that’s inconceivable that Virginia or some other state could prohibit interracial marriage. It’s inconceivable. Public sometimes follows the opinions of the Supreme Court, reads the opinion and says, “My gosh, thank goodness for the Supreme Court. We realize how wrong that was.”
(I’ve written about Loving vs. Virginia, which I too find analogous to the gay marriage issue.)
Perhaps it is my liberal bias, but I found the statements of the conservative Olson the most compelling:
TED OLSON: We’re not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court’s recognized that over and over again. We’re talking about whether two individuals who will be — should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.
At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn’t create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.
Or this exchange:
BILL MOYERS: So, you’re both comfortable invalidating seven million votes in California [who voted for Prop 8]?
TED OLSON: Well, this happens when the voters decide to violate someone’s constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need protection from the courts.
I was particularly fond of this:
BILL MOYERS: But you’re going up not only against the voters of California, the majority, but you’re going up against the Congress of the United States. In the 1990s, Congress passed the Defense of Marriage Act, which actually defined marriage as quote, “a legal union between one man and one woman.” And even declared that states need not recognize the marriages, the same sex marriages of another state. The President signed this. President Bill Clinton signed this. And you want to overturn not only the voters of California, but the Congress and the President of the United States.
TED OLSON:…it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, “What happened there?” And they’ll say, “Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.”
One of the fascinating aspects of the trial, which began in January, is that one could not watch the proceedings, unless one were in the federal courthouse in San Francisco. “(T)wo filmmakers in Los Angeles came up with an ingenious alternative. Using the trial transcripts and other reporting, plus a cast of professional actors, they turned the case into a TV courtroom drama. Every day of the proceedings has been reenacted on their website, Marriagetrial.com.
So watch/read this piece. You may be convinced, despite your conservative leanings, theological objections, or other issues that, as a matter of long-standing American law and jurisprudence, marriage is a fundamental right, and therefore must include gay marriage as well.
It is my general feeling that amending the United States Constitution is something that should not be suggested lightly. There’s a whole slew of proposed amendments that never really went anywhere.
Still, I’m mulling over this e-mail I got from Uthaclena which reads in part: “As you are undoubtedly aware, the Supreme Court recently decided that Corporations are Persons who are entitled to spend as much money on ‘free speech’ to effect elections as they like. I believe that most Americans, be they Liberal or Conservative, Democrat, Republican, Libertarian, Green, or Independent, thinks that this is ludicrous. The ruling legitimizes the business of BUYING elections, which is already a grave threat to our democracy. This is an issue that should unite us despite the partisan contention of the last decade.”
Well, yes. When I commented on the court case initially, my view was what it was, one commenter suggested, because I was liberal. I AM a liberal, but the issue was that the Court seemed to cede power from the people to the corporate state. It seemed radical. People complain about the “activist” court when some “progressive” ruling down. Well, this was the height of judicial activism. Along with the Griswold decision to essentially allow eminent domain for “economic” reasons, this court has put the people last.
So I’m feeling inclined to support such a measure.
“Maryland Congresswoman Donna Edwards and Congressman John Conyers Jr. of Michigan, have co-sponsored a bill to send a Constitutional Amendment to the States for ratification that would allow corporation’s influence to be limited. The proposal reads:
111TH CONGRESS, 2D SESSION
H. J. RES. ___
Proposing an amendment to the Constitution of the United States permitting Congress and the States to regulate the expenditure of funds by corporations engaging in political speech.
IN THE HOUSE OF REPRESENTATIVES
Ms. EDWARDS of Maryland (for herself and Mr. CONYERS) introduced the following joint resolution; which was referred to the Committee on __________________
Proposing an amendment to the Constitution of the United States permitting Congress and the States to regulate the expenditure of funds by corporations engaging in political speech.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
‘SECTION 1. The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.
‘SECTION 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.’.
You can voice your support of Representative Edwards here.
But more importantly, contact YOUR OWN Congressional Representative and ask them to support this resolution so that it can move forward. If you are uncertain who your representative is or how to contact them, use the locator.
The source article can be read here.
(WARNING! Leftie blog!! ;-)”
The disturbing 5-4 ruling by the Supreme Court in the Citizens United vs. the FEC this week is based largely on the notion that a corporation be legally considered a person, with the same rights of freedom of speech. This was based on what I always a convoluted interpretation of the Fourteenth Amendment, the “equal protection”, post-Civil War amendments designed to prevent states from discrimating against newly freed black slaves. (Arthur at AmeriNZ rants about this here.)
What would Earl Warren, the California governor nominated as Chief Justice of the Supreme Court by President Eisenhower (reportedly, to his lasting regret), and who served from 1953 to 1969, think of this new ruling? He would have opposed it vigorously. How do I know? I asked him.
Not about the current situation of course; Earl Warren died in July 1974. But the spring of 1973, I took a political science course, and one of the things our professor Ron Steinberg arranged was a meeting by the now-retired author of such landmark rulings as Brown v. Board of Education (equal education regardless of race), Miranda v. Arizona (police to advise suspect in custody of rights), and Reynolds v. Sims (one person, one vote).
Earl Warren spoke to us about many of the cases his court dealt with. As I recall, he seemed optomistic that the court, by then under the jurisdiction of Warren Burger, would continue to open avenues for historically discriminated-against individuals.
Then we got to ask him questions. Dry-mouthed, I rambled some question based on research I had done. It clearly wasn’t apparent what I trying to get at. Finally, I asked him if he thought the Court’s long-time assertion that a corporation was a person was consistent with the legislative intent of the Fourteenth Amendment. He got agitated, apparently not with me, but with the core of the question. “My, no!” he exclaimed. He thought it was a great overreach, not at all consistent with what the amendment was designed to do.
I’m confortable asserting that Earl Warren would have HATED this week’s ruling.
In Gideon v. Wainwright, (1963), the Court ruled that indigent defendants had a right to counsel, even if they couldn’t afford it. In Miranda v. Arizona (1966), the court determined that the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violated the Fifth Amendment of the Constitution.
And, most on point, Loving v. Virginia, the Court declared the state of Virginia’s antimiscegenation law unconstitutional.
If it were up to the general public in the 1960s, would every suspect get a lawyer and a Miranda warning? Heck, no, but it was the right and just thing to do. Or would Virginia and 15 other states have dropped their ban on interracial marriage without “assistance”? The proof is this: 12 states still had the ban on the books into the 1970s, though the laws were legally unenforceable. Alabama removed its law from its books in November 2000.
So, while I understand the political reality of trying to allow gay marriage via state legislature votes (New York, et al.) and public referenda (Maine, et al.), the issue seems so self-evidently right and just that I had a twinge of judicial nostalgia.
No, the only judicial “activism” we get these days are cases such as Kelo v. City of New London (2005), in which the “liberals” on the court allowed the city to use eminent domain to take private property and sells it for private development. I expressed my serious doubts about this case at the time. Turns out that the whole imbroglio ended up being a big money LOSER for New London.
I think gay marriage and other gay rights, such as ENDA will come about throughout the United States. But I’m now pretty convinced that gay marriage nationally will take another generation, another 20 years, to be fully realized. Maybe longer. And it makes me more than a little sad.
The New York Times was Live-Blogging the Gay Marriage Vote in New York State. State Senator Rubén Díaz Sr., one of the eight Democrats voting against the bill, is quoted as saying, “If you put this issue before the voters in a referendum, the voters will reject it.”. Probably true. But as some letter-writer noted, “I wish someone would ask Mr. Diaz if he thinks the civil rights acts of the 1960’s should have been put up for popular votes in the states.” As I said, just is just.
ITEM: I got this e-mail from one of my sisters about an incident at a Philadelphia-area swimming pool. Narrative courtesy of ColorOfChange.org:
[Three] weeks ago outside Philadelphia, 65 children from a summer camp tried to go swimming at a club that their camp had a contract to use. Apparently, the people at the club didn’t know that the group of kids was predominantly Black.
When the campers entered the pool, White parents allegedly took their kids out of the water, and the swimming club’s staff asked the campers to leave. The next day, the club told the summer camp that their membership would be canceled and that their payment would be refunded. When asked why, the club’s manager said that a lot of kids “would change the complexion … and the atmosphere of the club.”
A “Whites only” pool in 2009 should not be tolerated. The club’s actions appear to be a violation of section 1981 of the Civil Rights Act. Whether or not any laws were violated, a “Whites only” pool should be something every American condemns.
I get behind in my news reading, but I receive bulletins the local paper plus the New York Times. Yet I missed it. Was this merely a chain letter with the facts askew? Apparently not:
“60 Black Kids Booted from Philly Pool For Being Black — Speak Out,” Jill Tubman at Jack and Jill Politics, 07-08-09
I did subsequently see a mention in SamauraiFrog’s blog, but I believe this story was underreported.
ITEM: A review of the new Michael Bay movie, Transformers: Revenge of the Fallen. From Clay Cane of BET.com
The hip-hop talking robots were borderline offensive. Is this the movie’s way of appealing to the African-American audience? I never knew that robots could shuck n’ jive.
This was not the only critic who made this point. The defense of the movie – and this box office hits has plenty of defenders despite critical panning (or perhaps because of critical panning: “Roger Ebert is a moron!”) – were 1) the robots weren’t specifically African-American and 2) it’s only a movie; lighten up.
Now, I didn’t see the movie. Heck, didn’t see its predecessor and wasn’t planning to. On point 1, a character can be offensive without being specifically black; some character named Jar Jar comes immediately to mind. As for point 2, that’s just rubbish. (I could expand about how movies reflect society and blah, blah, blah, but “rubbish” will do.)
ITEM: Sonia Sotomayor being grilled over, among other things, Ricci vs. DeStefano, the New Haven firefighters case, and her appellate court’s position holding in favor of the city. I believe her defense is in the Supreme Court dissent – uncharacteristically READ ALOUD from the bench – by Ruth Bader Ginsberg. Here’s just a section:
The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.”…According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage…Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment . . . greater . . .than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid. See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are under-represented in the fire departments in nearly every community in which they
The city of New Haven (City) was no exception.
And in each of these disparate items, one thing is in common; Barack Obama is evoked in the commentary. “How could the swimming pool situation take place now that we have a black President?” “We should be past worrying about silly stereotypes anymore; Barack’s President.” “The Obama Presidency proves that issues of racial inequality are a thing of the past.” Meh.
Arthur and Jason noted an article by Eugene Robinson re: identity politics and Sotomayor. Arthur read this paragraph on their 2political podcast: Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a “wise Latina” might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any “identity” — black, brown, female, gay, whatever — has to be judged against this supposedly “objective” standard. Well stated.
Keep the champagne on ice. The post-racial America celebration will just have to wait a little bit longer.