Saturday, February 26, 2011
Friday, February 25, 2011
Thursday, February 24, 2011
The Radical Position Taken By The DOJ And President Obama In Its Refusal To Defend The Defense Of Marriage Act (DOMA)
The Justice Department has now said they shall refuse to defend the Defense of Marriage Act from legal challenges because, in the words of a letter sent from Attorney General Eric Holder to House Speaker John Boehner, the "President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA")... violates the equal protection component of the Fifth Amendment." If the federal government is disallowed from defining marriage (based on "equal protection") for purposes of federal benefits and administration as between man and woman, I don't see why State traditional definitions of marriage should be able to survive the 14th Amendment Equal Protection Clause challenges already taking place either. In other words, by taking this position, the White House has effectively endorsed interpreting the Constitution as requiring the redefinition of marriage to include homosexual couples. This position means not only that Obama has effectively flipped on his personal position on gay marriage, but really supports the redefinition of marriage as a matter of Constitutional law at all levels of government, local or federal. He is advocating warping the Constitution to require this extreme position, despite it clearly not being the original meaning of any Constitutional provision or even being required by any Supreme Court precedent.
Further, DOMA does not deal with the right to marry itself (which is clearly a State issue). As President Bill Clinton said on September 20, 1996, just one day before signing the Act, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms 'marriage' and 'spouse'. This legislation does not reach beyond those two provisions." DOMA's Section 3 is the portion that specifically deals with the definition of marriage for the purposes of federal law. Section 3 essentially stated that in relation to federal laws, such as those regarding federal benefits, marriage was to be accorded its traditional meaning. However, States are still completely free to redefine marriage if they so choose, and to use their own funds as they wish. Federal law not recognizing a certain subset of marriages that appear in a certain subset of States for the purposes of federal funds is not a violation of equal protection, or for that matter the Tenth Amendment (as a Federal District Court in Boston ruled last July). I don't see this as a violation of "equal protection" because DOMA applies the longstanding definition of marriage, which in fact predates American law itself, equally to all who fall within that traditional definition for the purposes of federal law. It also cannot possibly be a Tenth Amendment issue because it is not State funds that are even at play and DOMA is in no way interfering with the State ability to define marriage for purposes of State law.
But the administration has taken a radical new view, a view that even the Supreme Court has so far been reluctant to endorse. The Department of Justice now says that laws challenged on the basis of a claim of sexual orientation discrimination must be subject to "heightened scrutiny" rather than "rational-basis." The letter concludes by saying Holder "will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3." The phrase "heightened scrutiny" has usually been used interchangeably with "intermediate scrutiny" which is applied to laws dealing with gender, but it is unclear if the two are actually legally interchangeable. Further, the highest level of scrutiny is afforded to laws dealing with race, known as "strict scrutiny." What is clear from the letter is that the Obama administration is declaring gays a "suspect class" and any law that can be seen as discriminating against gays should therefore face a heightened level of review in the same way as laws dealing with gender, or perhaps even race (and this is already seen by the constant comparisons of interracial marriage and Loving v. Virgnia with gay marriage on the part of advocates for the redefinition of marriage in court and in the public sphere). It is taking the position that there is no difference between one's gender and sexual preference, or perhaps even one's race and sexual preference. The ramifications of this notion are quite boundless. It would certainly apply to marriage at the State level as well, and if actually taken to its logical conclusion far beyond that. Traditional values as they relate to sexual mores would now be completely denigrated to the same level of sexism or racism, and this would be enshrined into Constitutional law. It would essentially treat traditional moral values the same way as misogyny or white supremacy. To think this would not have wide effects and ramifications beyond just the definition of marriage is to not understand what is truly taking place in advocating this shift in the legal landscape.
Finally, it would be the first time a suspect class is created by virtue of proclivities toward a certain type of sexual conduct. That may sound politically incorrect, but it is factually correct. To afford the protections to a new suspect class of persons when the classification is intimately tied to conduct (i.e., homosexual sexual relations) is to completely change the structure of equal protection jurisprudence as we know it in a radical fashion. This would go farther even than the 2003 Supreme Court ruling of Lawrence v. Texas which overturned Texas's sodomy law, because that decision did not expressly state that homosexuals are a "suspect class" worthy of "heightened scrutiny." It rather said that the sodomy law did not meet "rational-basis" as the Court could find no "legitimate State interest" as a matter of "substantive Due Process." In fact, in her concurrence, Justice O'Connor specifically said that "preserving the traditional institution of marriage" was a "legitimate state interest." Of course, the new Obama view simply does not allow for this to be the case.
The CATO Institute's Jason Kuznicki writes in regard to practical implications of the Executive branch refusing to defend duly passed Congressional statutes: "Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?" Kuznicki is right. If the President believes a law is unconstitutional, he can use his veto power to block it or rally Congress to overturn it. He should not be able to ignore his Constitutional duty to "take care that the laws be faithfully executed."
Meanwhile, Law Professor Orin Kerr is rightly worried by this development and further explains the implications of this decision on Executive power:
What should be all too clear is that the Obama administration has radically departed from the Constitution and his duty as chief executive of these United States. TweetBy taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
Gaddafi Says Obama Is A "Friend"
Ynet reports that "Libyan leader Muammar Gaddafi considers the US president a blessing to the Muslim world. In a speech published in London-based al-Hayat newspaper on Saturday, Gaddafi praised Barack Obama, called him a 'friend' and said there is no longer any dispute between his country and the US."
Speaking in the Libyan city of Sirt at an event marking the 24th anniversary of an American attack on Libya, he said, "At the time, we were the target of the American cannon, the American navy challenged us in the gulf of Sirt and attacked us all along Libya's shores. America tested Libya, and the Libyan people resisted the large country, but today, thank God, the difference is great."
He said, "Now, ruling America is a black man from our continent, an African from Arab descent, from Muslim descent, and this is something we never imagined – that from Reagan we would get to Barakeh Obama."
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House Votes To Strip Planned Parenthood Of All Funding
The NY Daily News reports that "the GOP-led House passed an amendment Friday night that would eliminate federal funding for Planned Parenthood. The measure passed 240 to 185, with 11 Democrats voting in favor of the amendment. Seven Republicans bucked their party and voted against it. Planned Parenthood is already barred from using federal funds to perform most abortions, but is the largest abortion provider in the U.S. and a frequent target of pro-life advocates. The latest vote is being viewed as a victory for anti-abortion activists and Republican Rep. Mike Pence, who sponsored the legislation." Tweet
Wednesday, February 23, 2011
Obama Administration Flips After Two Years Of Defending Defense Of Marriage Act, Now Says Government Will Not Defend DOMA In Court
The Wall Street Journal reports that the "Obama administration said Wednesday that it would not defend the constitutionality of a 1996 federal law that defines marriage as the union of a man and woman, after two years making the opposite argument. The legal turnabout marks a contrast with the Justice Department's argument in recent years that it generally is obligated to defend federal laws, even when the administration opposes them. The administration made that assertion in defending the law that previously banned openly gay people from serving in the U.S. military. Congress has since repealed the 'don't ask, don't tell' law. "
Michael Steel, a spokesman for Mr. Boehner, said: "While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation."
Senator Orrin Hatch said in response that "President Obama’s personal politics are trumping his presidential duty. Congress overwhelmingly passed the Defense of Marriage Act, a Democratic President signed it into law, and the Justice Department has a duty to defend it. It is deeply disturbing to see politics further distort the Department of Justice."
"It's increasingly obvious this President cares little about the Constitution, but cares deeply about pandering to liberal interest groups. Traditional marriage is the foundation of America's culture, and the President's refusal to defend marriage undermines our nation's strength," said one of Obama's chief opponents, Sen. Jim DeMint, R-SC. "The Defense of Marriage Act is the law of the land and the President's administration hasn't challenged its constitutionality for two years. It's only in the run-up to reelection that he's suddenly changed his mind. If the President is seriously concerned about unconstitutional laws, he should abandon his defense of the health care bill."
Rep. Lamar Smith, R-Tex., chairman of the Judiciary Committee, accused the Obama Administration of politicizing the Justice Department, adding, "The Justice Department has a responsibility to defend the laws passed by Congress regardless of the personal political views of the President or the Attorney General. The Obama Administration's decision not to defend the Defense of Marriage Act is irresponsible. There is no rule that requires the Justice Department to apply a higher standard of proof in these cases."
"It's disappointing that the Obama Administration continues to place politics above the will of the American people," Smith said.
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Richard Epstein: "Economic Growth And Fiscal Order Requires Ending All Collective Bargaining Arrangements In All States"
To read the article entitled "The Wisconsin Shoot Out on Public Unions" by this Hoover Institution Senior Fellow and Chicago University and NYU law professor visit http://www.hoover.org/publications/defining-ideas/article/67771. Tweet
Tuesday, February 22, 2011
Monday, February 21, 2011
The Harm Principle As The “Only Purpose” For Law?
As a very general framework for justifying law, John Stuart Mill’s principle in On Liberty that the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” is superficially appealing. The reason this is appealing is that it leaves individual actions within the realm of individual responsibility, with only public actions that cause harm being those which are a matter of legislative public responsibility. This principle works to keep government from becoming overly paternalistic and intrusive in the lives of its citizens.
In general this is an agreeable starting point upon which a legal framework should be based. First and foremost, the law should prevent one person from harming another. What I wonder is whether this “harm principle” alone can truly suffice as the only basis for law? What is perhaps bothersome is that Mills states that the “sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” The right of self-protection is the moral right of the highest order, and therefore should serve as the first and loftiest moral basis for laws. But is it really “the only purpose” and “the sole end”? Is it the only factor to be taken into consideration when forming law, or must other values besides just self-protection be a part of the moral equation that results in just laws?
The greatest issue is whether paternalism, in the sense of protecting a person from harming himself, has any place in the law as well. Perhaps it is a lesser value, and therefore in order to ban one from harming himself there should be a requirement that the harm be of a more grievous kind. The threat of overuse of paternalistic justifications allowing for laws resulting in a “nanny state” or tyrannical intrusions on individual liberty should of course be kept in mind. In fact, it is precisely why a higher burden should be necessary for paternalistic laws. But does this mean that just because the burden might be heavier, it can never be met?
On the one hand there are paternalistic laws such as motorcycle helmet laws, seat belt laws, laws forbidding swimming without a lifeguard, or perhaps prohibitions of certain recreational drugs, that might not meet the necessary standard for a paternalistic law because the theory of personal assumption of risk renders the paternalistic justifications for the laws too weak. However, should laws against dueling, laws against suicide or voluntary euthanasia, murder statutes (insofar as consent of the victim is not a defense), be cast aside because the person or persons involved have consented and therefore no one is being “harmed” “against his will”? I think not. In some cases, the value protected is of such a high order that the law must exist to protect people from themselves. In the examples just listed, the protection of life is a sufficiently strong value that it can compete with self-protection as a justification for law. It is a value of such a high magnitude that consent of the parties alone (which according to Mills does not qualify it as a “harm”) should not justify its legality. What I think this demonstrates is that other values besides self-protection might serve as an adequate justification for law.
Perhaps one might argue that this same logic about the value of protecting life just used should apply to seatbelt laws and the like as well. Such an argument could and is credibly made. But is there reason to distinguish between a seatbelt law and a suicide law? Perhaps the reason is that assumption of risk is a countering theory in those seatbelt type circumstances as life is not directly and immediately at play, but rather it is just an increase of the risk to life that is at play. Therefore an assumption of that risk is sufficient to quell the justification of protecting life. As a result, it might not meet the higher burden of a competing value needed to justify paternalistic legislation in the same way a law against suicide does. No risk, however, is assumed in suicide, death is being directly chosen.
In summation, Mills is a really great starting point, but cannot also be the ending point of all justifications for laws. There are values besides “self-protection,” which if important enough, can serve as the justification for laws. What Mills leads me to think is that if a law is paternalistic at its core, it does not mean it cannot be enacted, but only that that there is good reason to demand a higher standard to justify its inclusion among the laws which are more easily justified because they cause harm to other members of society without their consent.
TweetWisconsin Assembly Forced To Recess Due To Threats
One could only imagine the reports that would be coming out of the media if Tea Party protests actually forced an Assembly into recess. Can anyone say "double standard"?Speaker Jeff Fitzgerald said he decided to adjourn the Assembly this evening because Gov. Scott Walker called minutes before lawmakers took the floor to tell him to get his caucus members and staff out of the building because their safety could no longer be assured…
The GOP Assembly leadership — Speaker Fitzgerald, Majority Leader Scott Suder and JFC Co-chair Robin Vos — have issued a statement reaffirming their commitment to pass the bill next week.
“The leadership of the Assembly has decided to recess due to security concerns. We will reconvene on Tuesday morning and are confident that the security concerns will no longer exist. We are committed as ever to pass Governor Walker’s Budget Repair Bill and will do so next week,” the statement reads. “Millions of taxpayers spoke in November and we will not let them down. We have a fiscal crisis that can’t be ignored. We have the votes to pass the bill; it is only a matter of time.”
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Wounded Iraq War Hero Speaks About Allowing ROTC On Ivy Leag Columbia Campus And Is Booed, Hissed, Yelled, Jeered, And Laughed At, Called A "Racist"
This treatment of an American war hero is of course brought to you by Ivy League educated leftist morons. The military has been banned for 42 years at the same oasis of diversity of thought that allowed Mahmoud Ahmadenijad as a guest speaker. Ahmadenijad of course was treated a whole lot better and with a lot more respect, though deserving none, by the brain-dead or brainwashed students than was a wounded Iraq war veteran.
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