The Paperboy

A lot of talent here regarding a late 1960s Southern melodrama, but the net result is pretty bad, particularly in that the story is pretty boring and clunky.  So bored, it took extras to catch the homosexual subtext though I guess would have saw if I was paying attention. Meanwhile, another promising topic, found Congressman Lincoln boring.

Easter Didn't Fix This: Fraud!!!

Someone Appears To Be Missing

Chris Hayes is moving to nights ["All in" is a stupid name], but had a "best of" today that included some of the leading Democratic mayoral candidates, though somehow the frontrunner had time conflict issues. Important election in November: post-Bloomberg time, unless he finds a reason to change his mind again and runs for a fourth time.

James Moore Wayne: Southern Unionist

It is interesting to read about people, particularly lesser known figures, from another time. Old books are charming on their own. This book from the 1940s (someone obtained it for me from a college library) is a workable biography of a workmanlike justice of the mid-19th Century. He staid on during the Civil War, but a son joined the Confederacy.

Now pitching, Jeremy Hefner

It's sad on both a personal and team level that Santana appears to have re-torn his shoulder and might be done.  The thir... omg ... that will be paid for him to be on the DL is rather depressing alone.  So, was it all worth it, even if he was in effect health for around half his time?  Guess, but I'm less sure as the author of that piece. Thanks for the memories.

More Specious Claims

Shocker: supporter of Prop 8 thinks it "highly improbable" that standing will be rejected and "likely" Kennedy will uphold the law.  I'm not totally free from doubt, though leaning toward a standing solution, but you know, not really surprising.  Ditto that he puts forth rank stereotyping of positions:

The view of some is that marriage is only about satisfying the emotional fulfillment of adults, and has little or nothing to do with encouraging a legal attachment between children and their natural parents. Others believe that sexual identity is inconsequential, rendering mothers and fathers entirely interchangeable.  Some communities disagree with both views.

Strangely, we are not reminded of Kennedy's question about the tens of thousands of children harmed by Prop 8 is same sex families, where "emotional fulfillment of adults" is not the "only" thing cited. 

And, we need not believe sexual identity is "inconsequential" (a strange thing to purport here anyhow, since it is part of why being allowed to marry your own sex is deemed so important) or mothers/fathers "entirely interchangeable."  In California, however, it is not the basis otherwise of disfavoring same sex families, particularly in ways that harm the children in question.  Benefits are not denied to single mothers regarding child care needs because it is better to have two parents in varous cases either.

But, bad argument is prevalent in the promotion of invidious discrimination.  See, for instance, another supporter suggesting somehow of the "grave damage to religious freedom which same-sex marriage portends."  What?  Notre Dame Law School should know a bit about this. Divorce laws, e.g, clash with Catholic doctrine, so does that too inflict grave damage to religious freedom? How does denying marriage to people whose religious beliefs support it do that?  SSM repeatedly are performed in religious ceremonies.  Catholics should respect religious diversity more given the history they suffered int hat respect, not less.  Morality on such questions should be decided by people themselves, individually. 

Can't promise anything, but that's probably enough on this subject for now. More with further developments or in June. 

Skim Milk Marriage?

Kaplan (Windsor's Atty) and Kagan: Sisters?

DOMA Orals

And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. 

One SCOTUSBlog included this tidbit among its discussion of the orals, adding that Ms Winsor's attorney"seemingly missed several opportunities, in answering some of the conservative Justices’ tough questioning, to the apparent consternation of gay rights lawyers in the attorney section." Don't know what that means exactly -- she was a bit rough, first timer and all, but seemed to me do a good enough job. 

The first hour went to standing, including Grandpa Scalia "back in my day" comment that refusing to defend while enforcing as the matter is appealed was just not done. Earlier, I linked to a discussion suggesting that it is sound policy.  I assume letting a single district judge decide DOMA is better?  Strange to me, but anyhow, doubtful five justices will refuse standing.  Took an hour to deal with the issue anyhow.

Next, we had the merits. Ah, Paul D. Clement, super-genius.  Yes, talented in promotion of such things as torture, constitution-lite hellholes, denying people health insurance and marriage rights .... oh, and an intermediate approach in Heller regarding gun rights, just to make him a tool to some fellow conservative/(kinda)libertarian sorts. I guess someone has to defend b.s. His at times hectoring and/or smartest guy in the room tone didn't help my dislike, nor his repeated totally specious arguments.

One that stood out was the total b.s. that DOMA was important to protect states from recognizing SSM.  People would get married in Hawaii (mind you, though this never was noted, SSM never actually got there) and go back to their home states and demand marriage rights. It is as if he is some random person who is not aware of the public policy exception where a state need not recognize a foreign marriage that violates local policy.  Why in the hell no justice pointed this out is unclear to me.  Guess Ginsburg was tired of pointing out the problems, including the "skim milk" [a fitting metaphor for a case ripe for FN4 review] version of marriage DOMA leaves in place.

Another dickish move was noting that Congress (why one house of Congress should have standing here is unclear to me; apparently, part of its, rather ONE house of Congress' powers is to ensure effective enforcement of its laws, which you know, had rather broad implications)  repeatedly asked the Clinton Administration if DOMA was constitutional. Mind you, this was before Lawrence v. Texas or even Romer v. Evans.  How could they have an animus?!  Why DOMA of all the other big changes in marriages over the years required special action is also unclear. Finally, when asked by Alito (as usual, had some good questions), the particular background of the tax law in question doesn't really suggest a reasonable reason to single out same sex couples. 

Kennedy thought the federalism argument at issue in a myriad of posts at Volokh Conspiracy made DOMA suspect, but the SG and Windsor's own lawyer wanted to focus on equal protection.  Probably don't have five votes and it is unfortunate the SG didn't do more to take the federalism argument Kennedy wanted to give him. It makes sense the Administration wanted to protect federal discretion here given where federalism arguments go in other contexts, but there was a middle way here. As Kagan, next to Ginsburg perhaps the best for the side of sanity here, noted, the weaker federal claim over marriage than states' have at least goes to the strength of the valid federal interest. Its heightened scrutiny campaign is appreciated, but probably won't have a Court.  Even Kagan and Breyer spoke of a "rational basis plus" and that probably will do it when necessary usually.

Alito raised an interesting question -- could the government instead of doing it this way (via a "defense" of marriage that "protects" a certain form of marriage), remove the word "marriage" and apply benefits and so forth some other fashion?  Hedging a bit, Kaplan did suggest that though federalism might make a federal "marriage" law dubious, this could be done, particularly to redress discrimination. This provides a way to give federal benefits to couples in states without SSM. A sort of "beyond marriage" approach that some want in the first place. She, somewhat surprisingly, also noted that federal benefits might be limited by residency. If one resides in a non-SSM state, you might lose out, even if you got married in a place with same sex marriage. 

Scalia was his usual dick self, Alito was suspicious of pressing a new form of marriage "newer than cell phones," but Roberts wasn't free from problems. Though not as much of a dick, Roberts can be a tool.  He repeatedly does not seem a big fan of the S.G. and it is curious to me why (except to play gotcha when the SG didn't want to rely on it) federalism concerns didn't seem to matter to him at all.  In the ACA case, some vague not proper problem was present even in an area where clear interstate commerce and tax matters was at stake.  I'm not as open as some to the argument, but someone like him should be.  Some think the ruling will be 6-3, written by him, based on federalism.  But, he isn't showing much there, while he did show some interest in the tax argument in ACA.

I predict DOMA will fall, federalism will play a big part and even if somewhat indirect and limited, same sex equality will advance.  Just how it will breakdown is a bit unclear, though five votes seems pretty apparent. At least here, just how Prop 8 falls is debatable, don't see Kennedy not being the fifth vote.  Interested to see how the others fall, including if a concurring opinion deals with the equal protection issue directly. 

Update: Rachel Maddow ended her first segment with a back/forth between Kaplan and Roberts on the political strength  of gays/lesbians, which brings to mind Scalia and his powerful gay movement brigade.  Implication is that they don't need special protection since they aren't politically powerless. (1) As she explains, that is a tad exaggerated. (2) Heightened scrutiny involves various factors, including immutability and the irrelevancy of the classification to legitimate interests (see Sotomayor entry) so that black or women getting power doesn't mean race and sex shouldn't receive that treatment. In effect, more b.s.

Prop 8 Supporter For Heightened Scrutiny?

All three of the female justices were pretty good, Sotomayer here basically getting the Prop 8 advocate to admit that sexual orientation is normally not a grounds for discrimination.  If so, "rational basis" seems a tad off -- something so rarely relevant warrants more than that.

Supreme Court Watch

One striking aspect to me is how opponents of SSM has reduced marriage as seen by this back/forth with Kagan/Cooper yesterday: 

Kagan: In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

MR. COOPER: I -- Your Honor, that's the essential thrust of our -- our position

Meanwhile, Ted Olson noted Prop 8 removes:

the right of privacy, liberty, association, spirituality, and identity that -­ that marriage gives them

In return, again why is this so hard?, CJ Roberts wonders how this is clear, how do we not know that procreation is what makes marriage a fundamental right?  Because the ability to procreate is not and never was a grounds to not being able to marry (in a few states, age requirements for close relatives, like cousins, in fact go the other way) and marriage is fully honored and special even when procreation is not involved?

As a child, and this doesn't make me special or anything, my grandmother re-married after my grandfather died (before my time).  My grandmother was past menopause. Procreating wasn't why she married or was given a marriage license.  It is simply inane to focus so much on procreation. Even old cases like Meyer v. Nebraska citing raising a family, not just procreation, since even then that sort of thing took place too.

Oh well. Two opinions handed down before the DOMA cases were heard, one unanimous, another a class action matter split 5-4 with Justice Ginsburg and Breyer writing a joint dissent (curious) joined by Sotomayor and Kagan (not joined in a judicial union).  The dissent in part argued that the majority reached out to decide a question.  I'm inclined to believe Ginsburg over Scalia, though have not tried to delve into the merits, but this underlines that a degree of choice is involved in these things.

Before listening or reading about the DOMA arguments, quick looks at Twitter and such suggested Scalia and Roberts were annoyed at how the Obama Administration handled this case. The path taken is not new and we see here that refusing to defend was done by both political persuasions, at least one case involving one John Roberts. Sure there was something different there or something. Noises are that Kennedy is sympathetic to the federalism argument here, good chance DOMA falls.

I'll take it.

Viola Liuzzo

MHP tweeted concerning the anniversary of the murder of this "Unitarian Universalist committed to work for education and economic justice, gave her life for the cause of civil rights." Have I noted recently I think UUs are pretty kewl? Seriously, RIP. HB Jackie.

Prop 8

SCOTUSBlog provides analysis and linkage to today's oral arguments, the audio released at around 1 P.M. The general sentiment is that Justice Kennedy doesn't want to decide the case, but would support some sort of dismissal on standing or other grounds.  I'm okay with that.  Not a big fan (at least on the record, neither did the couples, who won below) of taking the case, since it was narrow and seemed prudential to let it lie.

To my ear, there wasn't that much heat in the orals, though various arguments were handled (it was a running joke that each party didn't really want to talk about jurisdiction/standing, but the justices did). The liberals as much as Justice Kennedy seemed to wary about giving the Prop 8 side standing when state officials did not offer it though there (fwiw) they didn't all seem closed to the idea standing might be warranted.

The libs did sound supportive of giving protection based on sexual orientation.  Conservatives didn't really press the issue too much.  Let's see how things go on that front tomorrow regarding DOMA.  Scalia did raise the trope of  "when" same sex marriage was protected but Olson (rightly) noted these things develop over time. Brown didn't say segregation in public schools were unconstitutional such and such a day.  And, the idea Loving was merely one hundred years too late is lame.

The Obama Administration's position is that heightened scrutiny is warranted here and that once full civil union / domestic partnership rights are applied, it is unconstitutional not to go all the way.  Justices, on both sides, wondered why it made sense since this would pressure states that go almost all the way more than those that did deny all rights to such couples.*  This was granted, but focus should be placed on the strength of the state's claimed interests [Kagan had them admit "responsible procreation" was their basic argument], and at least here, they did not hold up when civil unions were protected.  The federal SG also noted something that I have repeatedly when appeals were made to reversing state judicial rulings on SSM on a sort of "go it slow" argument: 

California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button. They pushed a delete button. This is a permanent ban. It's in the Constitution. It's supposed to take this issue out from the [normal] legislative process.

 There are different people at Balkinization, Concurring Opinions and Volokh Conspiracy, some of whom I generally take as "reasonable conservatives," who basically scorn the 9CA ruling.  I disagree.  Alito et. al. believe SSM is novel and it is too soon to decide the question across the board.  But, that ruling did not and Prop 8 need not be decided, should not probably, be decided on such broad grounds. Roe v. Wade dealt with a law that banned abortion in almost all cases and Doe v. Bolton a somewhat less restricted one.  This covers a narrow question. 

But, if they want to decide it by punting, fine.  On another blog, someone noted there are cases in the pipeline that will require facing up the question.  The cases cover various grounds and the immediate ones to my knowledge actually does not need to address the full question, like if SSM should be protected where even civil unions are not. Take a question about adoption that Scalia posed.  Just one state doesn't allow gays to adopt [edit: actually, gays can adopt; Mississippi has on its book a law against two parent adoptions for same sex couples] though different ones apply things differently.  Striking down a law that denies a gay to adopt or a same sex couple is just one of a myriad of lesser questions that can be addressed.  Let them.

Some rather the matter just be decided. That might be best on some level, but it doesn't seem to be likely to happen.  So be it.

---

* It was a tad ironic, or something, that the SG's attempt to cabin the relief here by drawing this line, instead of taking an "all or nothing" approach was rejected by conservative justices.  We can't go so fast so soon, but you aren't asking us to go fast enough! In some other case, this sort of thing would not be done.  The Roberts Court, when they wish, has been known to rather artificially limit the reach of rulings. NOW, this is a problem?

And, the line in California makes sense -- the Prop 8 proponents want to limit rights for a specific reason.  They have to show a strong enough purpose to do this. Ted Olson noted this as well. If it is lacking, the fact that the result is in some fashion ironic ("almost" enough is not enough) does not erase the problem. Equal protection can sometimes lead to less, such as an exemption being removed to avoid giving it out to someone.

This really isn't that hard.

Dog Sniffs: Home

Justice Scalia's property based (curtilage) ruling for five (the ladies agreed but noted privacy would have done the trick) is as fine as it was short. Still, note how "social understandings" were involved with a modern day flavor which are not quite as "easy" as he might wish. Justice "Centrist" Breyer joined Kennedy, Alito (opinion) and Roberts in dissent.

RIP Anthony Lewis

Happened upon his death via Twitter. How 21st Century. His widow wrote the first (state) supreme court opinion protecting the right of people of the same sex to marry.

Something Like Normal

This first novel concerns a nineteen year old (written by a woman, but the narrator is a guy) on leave dealing with family issues, a new girlfriend and PTSD. Overall, a good novel about a real sounding character (seems to be based on someone). The girls are a bit too stereotypical but the characters as a whole are well written as is the book itself. Recommended.

Rev. Joe: Religious animus?

As noted here, religious belief can entail "animus" against gays, even if it is just about the actions. If you hate the sin, you will hate core actions of the sinner. Or, at least, have "animus" against them. This cannot be a reason for laws unless the "morality" at issue reflects republican principles. Doesn't necessarily make you a bad person though.

"Yankee White"

NCIS marathons are on weekends and by chance caught the first episode. We see how Kate came on and this was pre-McGee and Jimmy but we did see FBI Agent Fornell. Abby seemed a bit calm -- no energy drink (someone on IMDB tells me she did have them in the JAG preview of the series). GIBBS was excited about a movie while DiNozzo was not. Some other previews of regular stuff came out. Plot was a bit weak, but Air Force One setting was well done.

House at the End of the Street

Like the female leads (Elizabeth Shue and Jennifer Lawrence) but this thriller isn't very good. Actually, putting aside Silver Linings Playbook (itself a bit too Hollywood), her movies have been a bit off. Hunger Games bored me as did Winter's Bone (her best character role), where she seemed to play a Katniss type. The t.v. show was okay. Guess who will hook up again?

LA Ruling on Felons with Guns

It deals with an explicitly strict state constitutional provision, but I'm game. Heller's "felon," full stop, rule is problematic. First, what about violent misdemeanors such as domestic violence? Second, lots of non-violent felons would lose gun rights for a span of time long after they finished their sentence. Not sane for voting, not sane (if maybe a bit more) here.