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Tag: constitutionality
The March Of Same-Sex Marriage — 2013’s Story Of The Year?

The March Of Same-Sex Marriage — 2013’s Story Of The Year?

“When considering top stories of 2013, who among us even considered Utah would be issuing same-sex marriage licenses at Christmas time?” The New York Times‘ Jonathan Weisman tweeted on Thursday afternoon.

U.S. District Judge Robert Shelby’s ruling that Utah’s Amendment 3 banning same-sex marriage is unconstitutional was announced on the Friday before Christmas. Gay couples lined up throughout the state to be granted marriage licenses, which were being offered in 22 of the state’s 29 counties by Monday.

The state’s appeal to the 10th Circuit Court of Appeals was rejected on Christmas Eve and is now headed to the Supreme Court, where Justice Sonia Sotomayor will rule on the case that could resolve the huge question left open by the historic decision in United States v. Windsor, which found that same-sex couples could not be denied the federal benefits of marriage: Can a state ban same-sex marriage?

In the dissenting opinion on Windsor, Justice Antonin Scalia noted that it was inevitable that courts would come to the “same conclusion with regard to state laws denying same-sex couples marital status.”

“The court agrees with Justice Scalia’s interpretation of Windsor…” Shelby noted, likely with his tongue pressed against his cheek.

Since the decision in Windsor this June, the progress for same-sex couples has been sped up by an administration that has evolved from opposing marriage equality to now asserting that it’s a right inherent in the Constitution. Married LGBT couples now have equality with heterosexual couples when it comes to immigration, military benefits and Social Security, regardless of which state they reside in.

Despite this progress on the federal level, 32 states still prohibit same-sex marriage and many of those bans, like Utah’s Amendment 3, were approved by voters. If Shelby’s ruling stands these bans may be as useless as the 17-state anti-miscegenation laws banning interracial marriage that were still in effect when Loving v. Virginia ruled such restrictions were unconstitutional. “Marriage,” as Chief Justice Earl Warren wrote in Loving’s majority decision, “is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

As same-sex couples lined up for their licenses on Friday, fearful that a court would quickly stay Shelby’s decision, Scoutmaster Peter Brownstein and his son Michael, an Eagle Scout, passed out pizza to the soon-to-be newlyweds gathered throughout the Salt Lake City clerk’s office.

This June, Brownstein marched along with several other Scout leaders in Utah’s Pride Parade. The parade took place just days after the Boy Scouts of America decided to admit openly gay scouts, while maintaining its ban on openly gay leaders. He chose not to wear his Scoutmaster uniform as he marched this summer but he and Michael were in their official khaki shirts on Friday night as they handed out 10 Little Caesar’s pizzas.

Soon we’ll know if same-sex couples will be able to line up for marriage licenses in all 50 states with their allies cheering them on.  Or if they’ll just have to wait.

Photo: Fibonacci Blue via Flickr

The Death Penalty and The Costs of an Obsession

WASHINGTON — The unseemly love affair of some American politicians with the death penalty is bad for justice and bad for our country’s standing in the world. It inflicts a wholly unnecessary moral stain on a nation that rightly preaches the rule of law to everyone else.

Even more remarkable is the indifference that five justices of the Supreme Court have shown to such considerations.

And then there is Gov. Rick Perry of Texas, who insisted upon pushing ahead with the execution of Humberto Leal, a Mexican national convicted of the rape and killing of a teenager. Even former President George W. Bush — who presided over 152 executions as Perry’s predecessor — had qualms about the case. Bush hasn’t gone soft. He’s legitimately worried about the costs of the United States thumbing its nose at the government of Mexico and the world.

President Obama, the International Court of Justice and the Mexican government all wanted a stay of execution. But Perry’s press secretary was unapologetic. “Texas,” said Katherine Cesinger, “is not bound by a foreign court’s ruling.”

Imagine if an American life was at stake and a press secretary said that Iran — or Russia or Saudi Arabia or China — did not feel “bound by a foreign court’s ruling.”

Let’s be clear: This case involved a brutal crime, and Leal himself seemed to confess his guilt just before he died. “I take full blame for everything,” he said. “I am sorry for what I did.”

The Associated Press’ summary of the charges against Leal makes plain the sheer evil of the crime. It involved “the 1994 murder of 16-year-old Adria Sauceda, whose brutalized nude body was found hours after he left a San Antonio street party with her. She was bludgeoned with a chunk of asphalt.”

No one disputes that Leal deserved to be punished. And while I am strongly opposed to the death penalty, I would stipulate that if a state chooses to have one, this is the sort of crime for which it was intended.

But the episode dramatizes the way in which these inevitably politicized death penalty cases — Perry is mulling a Republican presidential candidacy — seem to harden us and rob us of our reason.

The International Court of Justice ruled that 51 Mexican-born inmates nationwide, including Leal, were entitled to new hearings in American courts to determine if their consular rights were violated. President Bush accepted the decision, but the Supreme Court overruled him in 2005.

So Sen. Pat Leahy, the chairman of the Judiciary Committee, has been pushing — so far unsuccessfully — to change American law to comply with the Vienna Convention on Consular Relations. He argues that “thousands of Americans are detained abroad while they study, travel, work, and serve in the military” and need access to consular officials who can “monitor their treatment, help them obtain legal assistance, and connect them to family back home.”

The Vienna Convention, which the United States agreed to, protects such rights, Leahy noted when he reintroduced his bill last month. “But it only functions effectively if every country meets its obligations under the treaty — including the United States.”

The four more liberal justices on the Supreme Court thought that little would be lost by delaying the execution. Writing for the dissenters, Justice Stephen Breyer sensibly argued that “it is difficult to see how the state’s interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer.”

But the five-justice conservative majority let the execution go forward on Thursday. They dismissed the president’s worries about the impact of the execution abroad as “free-ranging assertions of foreign policy consequences” that were “unaccompanied by a persuasive legal claim.” It’s disconcerting that a majority of our Supreme Court seems positively impatient just to get on with these executions.

Those who oppose the death penalty or think it’s imposed too frequently find ourselves interceding in cases involving truly terrible crimes that deserve severe punishment. But this is not about absolving criminals. It’s about our nation’s core values and how the rest of the world sees us. In this instance, it’s also about protecting the rights of Americans overseas.

When it comes to capital punishment, can’t we find it in ourselves as a nation to let our reason check our passions, even when those passions are entirely understandable?

E.J. Dionne’s email address is ejdionne(at)washpost.com.

(c) 2011, Washington Post Writers Group

Conservative Legal Star Upholds Healthcare Law

A George W. Bush-appointee and up-and-coming conservative jurist joined a Democrat to uphold the constitutionality of the healthcare law and its individual mandate to purchase health insurance today, giving the Obama administration its first bipartisan legal victory on the issue.

“We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause and therefore AFFIRM the decision of the district court,” reads the ruling by the 6th Circuit Court of Appeals.

“By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons. First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.”

This is the first time a decision on the law has not broken down explicitly along partisan lines. Judge Boyce F. Martin, appointed by Jimmy Carter, wrote the majority opinion, and was, crucially, joined by Judge Jeffrey Sutton, a conservative who clerked with Supreme Court Justice Antonin Scalia.

“I do think that’s the headline from this decision,” said Jamal Greene, professor of law at Columbia University. “Sutton is not just a garden variety Republican. He’s a conservative legal star. The fact that he came out in favor is a big deal.”

Separate challenges to the law have yet to be ruled on by the appellate courts, and the issue is likely to be decided definitively in the U.S. Supreme Court sometime next year.

Obama Lawyers Defend Health Care Reform In Front Of Hostile Judges

The 11th Circuit Court of Appeals in Atlanta, which began hearing oral arguments for and against the Affordable Care Act’s constitutionality this week, might be a tough crowd for the Obama Administration, even though two of the three judges are Bill Clinton appointees.

All three judges seemed unsympathetic to the administration’s defense of the individual mandate, and seemed more open to once-fringe Republican arguments that it violated the clause of the Constitution which gives Congress the right to regulate interstate commerce.

Legal commentators and experts, including conservatives such as former top Reagan Administration official Charles Fried, have called the challenge to the law tenuous at best, but yesterday’s hearing suggests this case–which is being led from the right by a collection of 26 states’ attorneys general and comes as full repeal is an article of faith among increasingly dogmatic Republican primary voters–is definitely going down to the wire. No matter what the 11th Circuit decides, it’s likely that the loser will appeal to the Supreme Court to make a final decision. [Los Angeles Times]