Drug Testing The Poor?

(By Andrew MacKie-Mason)

I got an email today from the ACLU of Michigan with the subject line: "Drug Testing the Poor In Flint, Howell Pulls Plug on Free Speech? and more..."

The ACLU-MI often has headlines that don't quite match the substance of the message, and I was particularly struck by the apparent claim that Flint would be instituting random drug testing for all people below a certain income level. Surprisingly, though...that's not actually what's happening.

What is happening is that Flint is planning to randomly drug test residents of public housing. This is an incredibly bad policy choice (it will further alienate those who already are disinclined to trust the government, and it will most likely do little to prevent drug abuse), but it is not, as the ACLU-MI claims, unconstitutional. Effectively, this is a contract issue: those who wish to live in a building must submit to the landlord's (in this case the government's) rules. If those rules include random drug testing, so be it. So long as the drug testing is allowed by the contracts, or only applied to newly renewed leases, there shouldn't be a problem with it.

Nor is there a problem, as the ACLU-MI suggests, with requiring drug testing of public housing residents but not other government-aid beneficiaries or tenants (such as students at public universities). Public housing is a unique environment and it is rational for the government to have different rules for public housing tenants than for college students or welfare recipients.

So, random drug testing for public housing residents is a bad idea, but it's not unconstitutional.

10 Months, 300 Posts

(By Andrew MacKie-Mason)

This was post #300, and this current one makes 301. I'll take the moment to thank those who read this once again: it gives me the motivation to keep writing rather than just thinking. I'll also put up this image, showing the number of daily visits since I started this back in October 2009. I hope you all keep coming back!

Predicting Perry

(By Andrew MacKie-Mason)

It's far from certain that Perry v. Schwarzenegger will ever reach the Supreme Court. But it's a definite possibility, and so I'd like to throw out an early prediction of the outcome that runs a bit counter to conventional wisdom.

Generally, I predict that a Supreme Court opinion in Perry would look much more like NAMUDNO v. Holder than Citizens United v. FEC.

More specifically, supposing no more personnel changes before the Court considers Perry, my feeling is that the court will affirm 9-0, but with a rather complicated split.

Due Process

The Court will rule that Proposition 8 violates the Due Process clause 8-1, with Justice Thomas dissenting (and issuing his typical opinion blasting the idea of substantive due process.) The majority opinion will decline to decide whether or not a fundamental right is at stake and will instead rule that Proposition 8 fails even under rational basis review, though we might get concurring opinions by Justices Ginsburg, Sotomayor, Kagan, Breyer (and possibly Kennedy) either strongly suggesting or outrightly stating that there is a fundamental right at stake. If Kennedy signs on to this view, then the majority opinion will reflect the fundamental right/strict scrutiny view, and Roberts, Alito and Scalia will file concurrences-in-the-judgment on the Due Process question, but instead get there by the rational basis route.

Equal Protection

The section of the opinion striking down Proposition 8 under the Equal Protection clause will be unanimous, with every Justice agreeing that there is was no rational basis for Proposition 8.

Caveats

Either the majority opinion or the concurrences by the conservative wing will make clear the arguments I laid out here: that the decision depends largely upon the findings of fact made at trial, which in turn depended entirely on the evidence presented. The Supreme Court will affirm Judge Walker's ruling that Proposition 8 not be enforced, but it will not strike down same sex marriage bans nationwide.

Author

The author of this opinion is a bit difficult to predict, but if it ends up going the way I've predicted then I think there are two possibilities. The most likely choice seems to be the Chief himself, since significant coalition building will be necessary to hold together the opinion, and he will be finely attuned to pragmatic issues of the Court's political viability. Of course, this depends on him being in the majority on the Due Process/fundamental right question.

The other strong possibility seems to be Justice Kennedy, since he holds the swing vote on the fundamental rights question, which will probably be the main point of dispute. Whichever side he leans towards might assign him the opinion in order to keep him on their side. (Actually, if Kennedy sides with the liberals on the fundamental rights question, the choice to assign the position should fall to him per the seniority rules. Justice Stevens' retirement provides Kennedy an interesting opportunity to become the leader of the liberal wing when it suits him.)

So, my contrarian prediction is that the Supreme Court will say, in a relatively unified voice, that Judge Walker made the correct decision in finding Proposition 8 unconstitutional, but will shy away from declaring a broad, national, unlimited constitutional right to marriage equality.

Marriage Equality for the Nation?

(By Andrew MacKie-Mason)

The conventional knowledge since Perry v. Schwarzenegger began seems to have been that the case was destined for the Supreme Court: that the plaintiffs even wanted it to get there. They want to create a precedent in the Supreme Court that guarantees marriage equality for the entire nation, don't they?

But, then, how to explain the fact that the plaintiffs attorneys in Perry are now trying to argue that the proponents of Proposition 8 don't even have the right to appeal the trial judge's ruling?

This seeming incongruity is not really surprising at all, once we understand the real role that the plaintiffs attorneys in Perry are playing. They are not acting as supporters of marriage equality. They have one single goal: to represent the interests of their clients (certain same sex couples in California who want to be married.) Those clients have won: they have no reason to want the case to go further.

But what if Perry does go further? What if the 9th Circuit ends up hearing the case, and then their opinion is appealed to the Supreme Court, which then takes the case? The word in the media is that this could set nation-wide precedent: marriage equality could be the law of the land, or it could be permanently excluded from the Fourteenth Amendment. But is this view accurate, or is it just naive?

It is actually unlikely that a Supreme Court opinion in Perry would be either the death-knell of exclusionary marriage rules or the end of constitutional arguments for protecting marriage equality. The reason for that is the fact-based nature of the ruling in Perry. Judge Walker's ruling was based in large part upon the various social and historical facts established at trial. These findings of fact are entitled to deference on appeal, but that's a double-edged sword: while it is generally difficult for a (principled) appeals courts to reverse a trial judge on a finding of fact, the precedential weight of that appellate opinion does not attach to the findings of fact (because they remain the judgment of the trial judge based on evidence presented at trial, not an issue of law decided by an appellate court based on briefing and oral argument.)

At the end of my initial profile of Perry, I said:

On the other hand, it means that Judge Walker's ruling (and appellate rulings) will be limited to the specific facts and arguments presented in the trial, as they regard California, the specific plaintiffs, Prop 8... in other words, even if the Supreme Court agrees with Judge Walker, the outcome could, hypothetically, be limited to California. And it may not even be interpreted as a full requirement for allowing all persons to marry: it could just be seen as overturning Proposition 8, and not affecting any policies that California decides to implement in the future.

I'll briefly expand on that, in two different scenarios: the Supreme Court issues an opinion reversing Judge Walker's ruling (whatever the Ninth Circuit does), or the Supreme Court issues an opinion affirming Judge Walker (again, whatever the Ninth does).

Reversal

If the Supreme Court reverses Walker, they will have to do so both under the Equal Protection clause and under the Due Process clause (in other words, saying that Proposition 8 is permissible under both clauses). If they agree with either aspect of Walker's ruling, the ultimate outcome will be an affirmance.

An opinion reversing under the Equal Protection clause would almost certainly say that while the plaintiffs presented significant evidence at trial, it was not enough to rule out all possible, rational reasons to discriminate against homosexual marriage. This aspect of the opinion would then be very confined to the facts: it leaves open the possibility that a later challenge to Proposition 8 could present more evidence of irrationality and cross the threshold to prove that Prop 8 is unconstitutional as a matter of Equal Protection law.

An opinion reversing under the Due Process clause would most likely go the route of saying that while heterosexual marriage is a fundmental right, marriage loses its intrinsic nature when the definition is extended to same sex couples. This would mean that Proposition 8 would no longer be subject to strict scrutiny, and then the same reasoning would follow as above with the Equal Protection clause (since Due Process arguments that do not implicate fundamental rights are subject only to rational basis review.) This result would be a little more troubling, since it would get rid of strict scrutiny from the Due Process equation (as a binding matter of law) but still leaves the issue open to facts, since rational basis review would still apply.

Thus, even if the Supreme Court reverses Perry, challenges in other states (or even a later challenge to Proposition 8) could still end up protecting marriage equality under the Fourteenth Amendment.

Affirmance

If the Supreme Court affirms Walker's opinion in Perry, it will only have to do so on one of the two rationales (Due Process or Equal Protection). I'll assume, for the purposes of this discussion, that the Supreme Court issues the strongest possible opinion (affirming on both clauses).

To affirm on Due Process, the Supreme Court would have to rule either that (a) there is a fundamental right at issue and Proposition 8 fails strict scrutiny or that (b) there is not (or may not be) a fundamental right at issue, but Proposition fails rational basis review. Both of these rulings would be highly dependent upon facts of the case, since those determine whether or not there is a compelling government interest or a rational basis. Thus, the opinion (might) determine, as a matter of law, whether strict scrutiny applies (they could dodge the question), but it would determine whether same-sex marriage bans fail the relevant test only with regard to the specific facts in this case.

To affirm on Equal Protection, the Court would only have to say that Prop 8 fails rational basis review (or that homosexuals are a protected class, and Prop 8 fails under strict scrutiny). Like above, the review is highly dependent upon the facts and evidence.

So, all in all, Perry, __ U.S. __, would have the potential to determine the following questions as a matter of binding precedent:

• Is the right at issue fundamental under the Due Process clause?
• Are same sex couples who seek to marry a protected class under the Equal Protection clause?
• Under facts identical to the ones presented in Perry, does a ban on same sex marriage pass either rational basis review or strict scrutiny?

Those are important questions, but no mix of answers to them guarantees any uniform rule on marriage throughout the United States. Even with a Supreme Court opinion, we have the chance for a patchwork of decisions going different ways on different marriage equality issues.

US: Singular or Plural?

(By Andrew MacKie-Mason)

Which do you think is the more correct sentence?

The United States recognizes religious freedom.

The United States recognize religious freedom.

Answer in the comments, and feel free to meta-speculate on the meaning of the question.

Fox News Frames Story To Defend Religious Endorsement

(By Andrew MacKie-Mason)

This is another story I meant to blog about earlier but I'm only just getting to: forgive me, please. Back in late July, Howard Friedman at the Religion Clause reported on a Fox News story about religious endorsement in a public school.

The endorsement came in the form of a banner (or a mural of a banner?) hung in the auditorium, which read:

Our Heavenly Father,

Grant us each day the desire to do our best,

To grow mentally and morally as well as physically,

To be kind and helpful to our classmates and teachers,

To be honest with ourselves as well as with others,

Help us to be good sports and smile when we lose as well as when we win,

Teach us the value of true friendship,

Help us always to conduct ourselves so as to bring credit to Cranston High School West.

Amen

The issues with this banner are manifold and should be apparent: the clear implication that there is a monotheistic male deity whom everyone believes in; endorsement of the idea that this deity is personally involved in the lives of individuals; the suggestion that moral growth requires belief in this deity; the idea that kindness and helpfulness require divine help to achieve; the suggestion that true friendship is of a religious nature; and the endorsement of a certain type of prayer.

However, in typical form, Fox News does its best to frame such a clear-cut story about state establishment of religion in a way most favorable to the religious right.

The opening sentence/paragraph of the story reads:

School officials in Cranston, R.I., say they can't afford a court battle with the American Civil Liberties Union, so they will remove a banner that has been displayed in a high school auditorium for more than half a century -- a mural that calls on "Our Heavenly Father" to help students conduct themselves appropriately.

This manages to immediately frame the conflict the way Fox wants to: a poor, beset school district just can't manage to withstand the harassment that the ACLU can bring to bear, and all the school wants to do is preserve a tradition that has lasted for "more than half a century" (which sounds so much longer than 52 years, doesn't it? Nice word choice, Fox). And, of course, they focus on the call the mural makes for appropriate conduct. There was no reason to select that particular line from the banner, except that it fits the narrative that the ACLU and other liberals are trying to lead our children into inappropriate conduct.

The story continues:

The ACLU, following a complaint from a parent whose child doesn't even attend the school, wrote a letter to officials at Cranston High School West asking them to take down the banner, claiming it violated the First Amendment.

With this nice focus on the fact that the complaining child doesn't attend the school where the mural is, Fox News manages to imply that the ACLU is butting its head in where it doesn't belong.

Then, Fox News portrays the school district as the conciliatory ones, again implicitly portraying the ACLU as the unwarranted aggressors.

He said the School Committee plans to discuss the matter with the ACLU on Tuesday, and he hopes the two parties can reach a compromise.

Finally, we start to see an acknowledgment of the constitutional principles at stake, but by this time Fox News has already achieved their goal: find one more example of the supposed war on Christianity, rather than talking about one more example of the ways in which public institutions still improperly advocate Christianity.

This conduct from Fox News is not surprising, but it should still be pointed out whenever it occurs.

Note: While I normally give individuals whom I criticize the opportunity to respond, I rarely do so for news organizations. However, in this case, I will try my utmost to notify the writer of this specific story (Meghan Baker) about my criticisms, and I will give her a full opportunity for comment if I can contact her.

Judge Rules Challenge "Not Frivolous"?

(By Andrew MacKie-Mason)

I'm late getting to this post, but a few weeks back Randy Barnett (Georgetown University Law Center) made a very interesting claim.

Essentially, from day one, politicos like Nancy Pelosi and numerous law professors have been saying about the constitutional challenge to the individual mandate: “Nothing to see here folks, move along.” Today Judge Henry Hudson ruled, “there is something to see here folks, let’s stop and evaluate carefully.” That is a big step...

While today’s ruling by Judge Hudson did not decide the case on the merits, it did make at least one official ruling of importance: the constitutional objections to the individual mandate are serious and not frivolous. This is an essential implication of today’s ruling because, had they been frivolous, the motion to dismiss would have been granted. So, no matter what the outcome, today’s ruling vindicates the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power.

Here, it seems, is Professor Barnett's logic: Judge Henry Hudson thinks that this case deserves consideration on the merits. Therefore, this case is not frivolous.

That's a remarkable claim...and I doubt that Professor Barnett would really like to follow through on all of the implications of this statement. In effect, what he is claiming is that the decision of one federal judge overrules the reasoned judgment of every other person in the country. While that may be true as a matter of law and technical jargon, it is ridiculous to say that as a matter of truth.

If Judge Hudson had dismissed the case, would Professor Barnett have said, "well, I guess that vindicates the opinion of everyone who said these cases were frivolous?" Somehow, I doubt it. Given what I've read at the Volokh Conspiracy, a much more probable reaction from Professor Barnett (supposing that Judge Hudson had dismissed the challenge to the health care bill) would be "rogue judge, like the rest of the liberal legal establishment, succumbs to false claim that these challenges are meritless."

(While we're on the subject, let's talk about who Judge Hudson is. According to Wikipedia, he got both his B.A. and J.D. from American University who spent almost his entire legal career in Virginia. He was appointed to a new judicial seat in 2002 by George W. Bush. While these credentials are not especially poor, they aren't exactly the credentials of someone who should be able to, as a matter of truth in public debate, overrule many people with at least as impressive credentials.)

Professor Barnett, it seems, has no reason to advocate for this total and complete subservience to the opinion of a single judge, other than the fact that this specific judge happens to agree with him on this specific issue.

While it is true that, at the current moment, the challenge has been ruled not frivolous (as that word is used as a term of art in law). However, that ruling is not final (it is subject to appellate review at various stages) and also, it is perfectly legitimate for people to still think that the challenges are frivolous, both from a technical standpoint (if they think the judge made the wrong ruling) and from a colloquial standpoint (if the think the challenges are made more for political show than out of any legitimate legal argument.)

All in all, it is completely ridiculous to claim that the opinion of a single federal judge can "[vindicate] the legal judgment of the Attorneys General of 2/5 of the states that there are serious constitutional questions about this claim of government power," at least as a matter of public debate. Judge Hudson's opinion does not vindicate the state Attorneys General, it merely adds one more (relatively small, in the scope of the public debate, though powerful in terms of legal effect) voice to the side of those Attorneys General.

Social Issues In The Courtroom, Part 2

(By Andrew MacKie-Mason)

When I emailed Professor Rob Vischer (University of St. Thomas Law) about my response to his earlier post, he replied by, in part, pointing me to an article he wrote for Commonweal Magazine. This article extrapolates on (and more fully explains) the statements of his that I previously criticized. While the Commonweal Magazine article doesn't present any new ideas, it is more refined than the original post it was based on, and thus I thought it deserved its own response.

The main point of the article is that decisions about the future of marriage, and about contentious social issues generally, should not be decided in the courts. (This seems to suggest that courts should have little involvement at all in solving social issues, since a certain level of contentiousness is required to bring an issue before courts in the first place. I will, however, leave that implication aside for now.)

I believe that Professor Vischer's argument can be boiled down to the following main points:

• Many of the facts relied upon in Judge Walker's ruling in Perry v. Schwarzenegger are speculation rather than facts.
• A method of resolving social issues based primarily on analysis of harms is inferior to one that takes into account morality and a deeper understanding of the social institutions under examination.
• Trials put social issues at the mercy of the adversarial process.
• Judicially mandated solutions to social problems, particularly the ruling in Perry v Schwarzenegger, pose a risk to religious freedom.
• The judicial process dangerously narrows consideration done to the realm of a single judge and a few witnesses.
• Courts are not qualified to determine, as Judge Walker did, a definition for marriage.

(I apologize in advance for how long the following analysis of the above points is. This is, I think, a time when it is far more important to be thorough than to be concise.)

Speculation or Facts

In the Commonweal article, Professor Vischer says, "Some of his fact findings come across as premature, portraying contested and unverified issues as conclusively settled." The specific examples he identifies are:

55. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex relationships.

70. The gender of a child's parent is not a factor in a child's adjustment.

71. Having both a male and a female parent does not increase the likelihood that a child will be well-adjusted.

As I pointed out in my previous post, the relevant question is not whether these issues are contested: it is whether there is a legitimate, scientific dispute over these questions. While I am not sufficiently well versed in the relevant scientific literature to say whether there is such a legitimate dispute over these questions, looking at the evidence presented in the trial it is clear that there is no dispute, and these issues are settled to the point that a finding of fact is justified.

Judge Walker did not act as an arbiter of science; he did not pick the winner between two legitimate choices, but instead identified the only legitimate choice presented at trial. All three of these findings of fact are based on questions that can be answered by empirical scientific studies. If there were any debate about those issues, it would have been no more difficult to show at a trial than showing that a certain driver drove too quickly in dangerous conditions, thus causing an accident (Professor Vischer's example, not mine). Perhaps there is a legitimate scientific debate over those facts (if there is, maybe Professor Vischer could locate the relevant studies?). But the existence of such a dispute would only demonstrate the incompetence of the defense lawyers in Perry, not the inappropriateness of the venue or the over-broad fact finding of the judge.

Harms and Deeper Social (and Moral) Questions

In the article, Professor Vischer writes:

Significantly, unlike many political arguments for and against same-sex marriage, Walker’s constitutional mandate does not emanate primarily from our society’s understanding of marriage or from some broad moral narrative. Instead, it takes shape from the tallying of “harms.” The logic goes like this: If extending marriage to same-sex couples does not cause a harm demonstrable through evidence in court, then same-sex marriage must be allowed, since the harms to gays and lesbians—both psychological and, in states that lack comprehensive civil-union statutes, material—are readily discernible. And so the debate about same-sex marriage is over, summarily ended by judicial fiat.

It seems to me that Professor Vischer is misunderstanding the legal reasoning of Proposition 8. The question is not one of harms: at least not so directly as Professor Vischer seems to be claiming. The issue first is whether Proposition 8 created a system of law that treated different groups unequally (for the Equal Protection analysis) or that deprived people of their liberty (for the Due Process analysis). This is where the harms to homosexuals come in, because the ways in which the law harms them helps to show inequality and a denial of liberty.

Once inequality and a denial of liberty have been demonstrated, the analysis turns to the next issue: that of governmental interest. Different standards are applied (rational connection to a legitimate governmental interest under the Equal Protection clause and a narrowly tailored relation to a compelling governmental interest under the Due Process clause) but the issue is fundamentally one of interests. This is where social harms come in, since the government has an interest in preventing those social harms. The analysis is not limited to "harms," since the government can have interests beyond preventing harm (such as promoting prosperity, for instance.) It's true that only prevention-of-harm interests seem to be relevant to the marriage situation, that's different than saying that only harm can be considered.

So, what happened in Perry v. Schwarzenegger was not merely "the tallying of 'harms.'" What happened was first an analysis of harms to homosexuals to determine if the requirements were met for the Fourteenth Amendment to apply, and then a look at the harms to society of allowing homosexual marriages to determine if there was a sufficient governmental interest to offset the Fourteenth Amendment arguments. Perry, and Fourteenth Amendment jurisprudence generally, is not really the balancing test of harms that Professor Vischer suggests it is, but actually a two step analysis, where certain harms are relevant to each step.

Professor Vischer is correct that considering social issues through the lens of the Fourteenth Amendment does remove a certain amount of moral consideration: however, it does so only to the extent that those moral narratives or "understandings of marriage" are not subsumed into a legitimate governmental interest. And if the considerations we lose are not relevant to governmental interests, than we've really lost nothing of value from the conversation.

Adversarial Failure

Returning to the Commonweal article, Professor Vischer claims that the adversarial process cannot adequately substitute for public discussion.

But the public conversation itself translates awkwardly, at best, into the courtroom, where evidentiary rules operate as a stringent filter, and outcomes turn on the strategies and competence of adversarial attorneys. In Perry v. Schwarzenegger, the attorneys defending Proposition 8 chose to call only two expert witnesses (against nine experts and eight lay witnesses called by their opponents), and both of them were deemed by the court to be lacking expertise in the fields about which they were testifying. Is it any wonder that Proposition 8 did not fare well in Walker’s analysis?

No, it is not surprising that that a woeful lack of evidence resulted in a loss. There are three possible places to assign blame for that, though, and Professor Vischer seems to choose the least likely candidate for recriminations.

When a party fails to defend its position, one can blame either the adversarial system, the attorneys, or the position itself.

Professor Vischer would like to blame the adversarial system, but does that really make sense? This case did not depend on metaphysical questions that a court is not qualified to address: it depended on whether or not there was a legitimate scientific dispute over certain empirical questions related to state interests. Those are questions a court can answer given appropriate evidence, so the adversarial system cannot be at fault.

That leaves either effective malpractice by the attorneys or the implicit weakness of the position itself. While it is difficult to say which of those is to blame (unless someone can produce studies the defense should have known about and introduced?) the strong incentives motivating the proponents of Proposition 8 to put on a hearty defense suggest that any failings in that defense are because of the inherent weakness of the position itself.

All of the relevant questions are within the competency of a court to address, and the failure of a party to put on a strong defense in such a case is not proof in and of itself that the venue itself is improper. (I ask Professor Vischer: is the inability of many criminal defendants to put on a strong defense evidence that the adversarial system is broken rather than evidence that many criminal defendants just don't have a viable defense?)

Courts, Social Issues, and Religious Freedom

Professor Vischer's appeals to religious freedom are some of the weakest arguments in the article. He says:

Judges decide cases; they designate winners and losers. Under the auspices of fact-finding, even a well-intentioned judge can send troubling signals about who the “losers” are in the battle over marriage. Consider Walker’s finding no. 77: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” As support, the judge cites teachings from various Christian traditions, including the Catholic Church, that homosexual acts are sinful. For religious liberty advocates concerned about the Supreme Court’s recent decision that Christian student groups are not shielded by the First Amendment from the reach of a state university’s antidiscrimination policies, this finding was not reassuring.

The purpose of the finding about religious beliefs was to demonstrate that incorporation of those same religious beliefs into public policy can reinforce the harms caused by those religious beliefs. It is not clear how that is a concern of religious liberty, since neither Perry nor CLS (the case referenced at the end of the above paragraph) suggest that religions themselves can be prevented from discriminating. Perry merely involves a finding that religious beliefs can be harmful as part of ruling that incorporating those religious beliefs into law can also be harmful.

One Judge And A Few Witnesses

Professor Vischer writes:

The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.

This characterization of the judicial role is very similar to the one put forward by John Yoo that I criticized the other day. It is false to say that trying these issues in the courts "replaces [political processes] with one judge's evaluation of a few expert witnesses." It would be far more accurate to say that it "supplements political processes with the judicial system's evaluation of all relevant evidence presented by extremely interested parties." It is not merely evaluation by one judge, because of how our system of appeals works. It is, more accurately, evaluation by the judicial system that we apply to many important cases.

And there is nothing that says that evaluation had to be limited to "a few expert witnesses." The parties were free to put any relevant evidence before the court, and presumably they put forward all of the evidence that they thought would be helpful. While it is true that the judge does not consider every single piece of evidence that is available in the public discourse, the judicial system does, through its primary filter of information (advocates.)

Courts Defining Marriage Through History

Professor Vischer's final claim is that Judge Walker overstepped the judicial role by finding as fact a definition of marriage, when the definition of marriage is itself a hotly contested social issue. He suggests that such a fact cannot be found by a judge through appeals to history, but instead can only be worked out with public debate. Professor Vischer writes:

Obviously, the question of whether same-sex couples are identical to opposite-sex ones in their ability to form successful marital unions depends on how we define marital unions. Since legislatures have rarely bothered to define marriage beyond its composite elements (notably, one man and one woman), this is not an inquiry that can be settled by a quick look at the law books. And since our society remains deep in the middle of an ongoing conversation over the nature of marriage, neither can it—or should it—be settled by the testimony of a single historian. When a judge takes a hotly-contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars.

However, it is perfectly reasonable for a judge to define marriage (as a historical institution), based on consideration of all of the relevant historical evidence. This isn't a question that requires prescriptivist definition by a legislature: it can be resolved descriptively by looking at marriage as it has existed. To resolve this, a judge must only ask what have been the goals, aims, and defining characteristics of marriage throughout the years, especially the ones central to the governmental acknowledgment and legitimization of these relationships. That is a question that can be properly explored in a courtroom, and need not be considered by the populace at large.

And, finally, Professor Vischer is once again incorrect to say that this complicated a question cannot (or should not) be resolved by a single historian. What is true is that this kind of question can be resolved in court by considering the relevant evidence, and in this case, the relevant evidence (as determined by two highly-interested parties) consisted of the views of a single historian.

Nothing I've said is meant to prove that the American legal system is perfect, or even that our system of government has no flaws. Perhaps the Fourteenth Amendment should not exist, or perhaps we should not rely so heavily on judges to resolve our constitutional debates. Perhaps advocates of equal marriage rights would have been better served by pursuing political rather than legal solutions (Professor Vischer does briefly raise this in his conclusion). But those are mainly deeper structural issues than Professor Vischer is raising in his critique of Perry. What I have attempted (hopefully successfully) to prove is that our judicial system is properly able to answer all of the questions that are relevant to determining whether same sex marriage should be protected under our Constitution, as written. The facts relevant to the legal analysis under the Fourteenth Amendment are certainly within the competency of courts to find.

2010 Elections: Rob Steele, Homegrown Doctor for Congress

(By Andrew MacKie-Mason)

In response to a reader comment, my first look at the 2010 general elections is going to focus on the race for Michigan's 15th Congressional District. The image at right (from Wikipedia, in the public domain) shows the boundaries of the 15th district.

John D. Dingell, the incumbent Democrat, has been in Congress since January of 1955. You can find his campaign website here and his website as a current Congressman here. I'll write more about Dingell and his campaign in a subsequent post.

Dr. Rob Steele is the Republican challenger for the 15th District. You can find his website here. Steele is a cardiologist who attended the University of Michigan for undergrad as well as medical school. He's a member of the NRA and the Washtenaw Sportsman Club.

Steele's campaign has a Facebook page, which (it turns out) is actually a very useful tool for evaluating the character of a candidate. Unlike "issues" statements on campaign webpages or press releases issued by a campaign, Facebook posts are much less likely to be carefully scripted and run past testers: in other words, they come more directly from the heart of a campaign and can tell us more about how that campaign, and that candidate, think.

Steele's campaign seems to have two prominent themes: the value of "citizen statesmanship" and hatred of current incumbents and the "liberal agenda." He phrases his effort not as one of conflicting ideas, but one of the down-to-earth "little guy" against the liberal machine. In particularly, his latest post (at the time I'm writing this) says:

It's the 75th anniversary of the Dingell family legacy, Social Security. John Dingell is claiming victory! "The program is funded until 2037 ", says Dingell. For those under 36...I guess you're out of luck.

The willingness to take potshots (without being completely honest) is evident. To say that Social Security is fully funded for the next 27 years is not to say that we will just end it in 27 years. It is merely refuting hysterical claims that Social Security is on the brink of death and in the middle of a catastrophe.

I also gained some insight into who Rob Steele is from listening to the first portion of an interview he had with "Armed American Radio." You can find it in the video section of Steele's campaign site. Steele concentrated largely on how old Dingell is and how long he's been serving in Congress. One of the first things he said, meant as a humorous quiz question, is "how many states were in the union when John Dingell was elected?" The answer, of course, is 48. (Alaska became a state in '58, and Hawaii in '59.) Steele also said that there's a bunch of "hi-tech stuff happening in the world," the clear implication being (of course) that John Dingell couldn't handle any of that, seeing as how he's so old. As Steele sees it, we should want someone who graduated from medical school in 1981 rather than someone who graduated from law school in 1952.

As for the issues, Steele is running mainly on (a) solving Michigan's unemployment problems and (b) opposing the health reform law that passed Congress this year.

The first two sections on Steele's "issues" page are devoted to "Spending" and "Taxes," respectively. In the spending section he raises the traditional concern about the current debt and deficit, while in the taxes section he bemoans first the ability of special interests to cheat the tax code, and second the high taxes on "work."

The next section is "Healthcare," where Steele first asserts that "Consumer choice and responsibility, price transparency, equal tax treatment of the employed and self employed, in combination with Health Savings Accounts, are more cost effective for the patient and providers." Health Savings Accounts tend to help wealthier people who are more able take advantage of the tax breaks they offer, and hurt the poor (since more of the burden of paying for insurance is pushed down the economic ladder). Consumer choice sounds like a good thing, but often is code for allowing individuals to not purchase insurance and then rely on more costly societal safety nets when they do fall ill.

In the final section, "Accountability," Steele claims that Congressmen are exempted from Social Security (I presume he means paying Social Security taxes), Medicare (I presume he means paying the relevant taxes, again) and the "proposed government run health care program" (I'm not even sure what he's referring to there).

The claim that Congressmen do not pay Social Security taxes is false, according to FactCheck.com, which provides references to the relevant laws. Steele's site provides no sources. I wasn't able to find any information about Medicare, though I believe it falls under the same rules as Social Security taxes (and either way, Steele again provides no references.) The claim about the proposed government run health care program makes little sense. There are no requirements or taxes in that bill that Congressmen are exempt from, to my knowledge, and the Steele campaign declines to give us more of an idea of what he's getting at.

He also claims that: "The government does not abide by the laws any normal business must, including accounting practices and employment rules of the Equal Employment Opportunity Commission." While technically true (the EEOC does not have authority over government employment) the same rules are actually enforced by other parts of the government and other laws.

Steele says that "Medicare and Social Security are run identically to the Bernie Madoff Ponzi scheme – the one that put him in jail for the rest of his life." This, of course, is not true: Medicare and Social Security are transparent programs that pay cash from one group (those who are working) to another group (those who are retired) with some built up as a reserve. Ponzi schemes are illegal because they are fraudulent: they claim to be making a profit and promise impossible returns, but instead funds are paid out based on future investments. The distinction between government programs like Medicare and ponzi schemes is a clear one.

All in all, Steele's issues page provides little in the way of actual plans, and a significant amount of false claims (particularly in the last portion.) I've sent an email to the Steele campaign about these issues, and I will post their response if they have any.

The other thing to notice about Steele's issues list is that it is very narrow minded. Instead of addressing the many problems with modern American society (federal discrimination against homosexuals, disparities in sentencing between similar crimes based on racial differences, the current, failed system of governing through crime, the injustice of the death penalty, etc), Steele has seemingly decided to cling to a very short list of problems that he feels he can attack Dingell on: unemployment, taxes, health care, and alleged accountability problems. This, it seems, may be the problem with the "citizen legislator" model he pushes so hard: Steele has a few things he is interested in doing, but he doesn't seem to have a grasp of the bigger picture, an idea of where he wants America to be in 10, 20, or 50 years. He has no political vision. An electoral philosophy, perhaps, but not a coherent and solid idea of what needs to happen.

As always, the comments section is open to those who know more about Dr. Steele or who think I haven't treated him fairly. And as is my general policy, his campaign will be made aware of this post and given the opportunity to comment.

Should The First Amendment Protect Obscenity?

(By Andrew MacKie-Mason)

Mike Sacks of F1@1F reports on a case that could, potentially, lead to further First Amendment protections for allegedly obscene material (in this case, bestial and scatological pornography). Without going into much depth on this, it seems clear to me that there should be no obscenity exception to the First Amendment.

What we view as obscene is a question of community standards, and thus a political issue. Creating material that many people would see as obscene assists in the long-term effort of normalizing such behavior and making it acceptable. It is therefore political speech in the finest traditions of the First Amendment and deserves full protection.

Thoughts?

2010 Elections

(By Andrew MacKie-Mason)

I was entirely deficient in my election coverage for the Michigan primary (August 3rd) and, in fact, I was just a few days late in registering to vote so that I missed the window to vote in the primary. I hope to make up for that with better coverage of the general election this November.

So, first, here are the primary results.

Governor of Michigan

On the Democratic side of things, Virg Bernero beat out Andy Dillon 59%-41%. I wrote up a profile of Bernero here. He had the strong support of unions, particularly the teacher's union. His main focus for the future of Michigan, at least back when I did that initial profile, is on economic issues, particularly on building up the green energy industry in Michigan.

In the Republican race, Rick Snyder won a five way race with 36% of the vote. (His closest competitor had 27%). The only information I had about Snyder was this post from Blogging for Michigan about Snyder's opposition to tax credits to incentivize filming in Michigan.

7th Congressional District (U.S. House of Representatives)

The current Democratic incumbent, Mark Schauer, ran unopposed in the Democratic primary. He is finishing his first two years in Washington.

For the Republicans, Tim Walberg won a three way race with a hefty 57% of the vote. The runner up, Brian Rooney, had only 32%. My posted information about Walberg is currently limited to his strong opposition to abortion; I had actually devoted much more effort to covering Rooney.

15th Congressional District (U.S. House of Representatives)

The current Democratic incumbent, John Dingell, ran unopposed in the Democratic primary. He has been in Congress for 55 years.

Rob Steele won a four way race with 51% of the vote. I actually hadn't looked into any of the Republican candidates in this race yet at all, and I will definitely have to do so.

52nd House District (Michigan House of Representatives) [results]

Christine Green won the Democratic primary with 71% of the vote. The runner up was Robert Wozniak, who I improperly didn't even report as a candidate. I had no information up about either Green or Wozniak.

Mark Ouimet ran unopposed in the Republican primary. It's perhaps worth noting that more Republicans turned out in this primary than Democrats. 60% of the voters were Republican, though that may be explained by a more contentious gubernatorial race. I didn't have any information up about Ouimet either.

53rd House District (Michigan House of Representatives) [results]

Jeff Irwin won the Democratic primary with a close 51% of the vote. I didn't have information up about either Irwin or his competitor Ned Staebler.

Chase Ingersoll ran unopposed for the Republican nomination. I didn't have anything up about her candidacy. This election saw a much stronger turn out for Democrats (82% vs 18% Republican.)

Mayor of Ann Arbor [source]

In the Democratic primary, incumbent John Hieftje defeated Patricia Lesko 84%-16%. I didn't have information about this up before, but he will face an independent challenger (Steve Bean) in November.

Washtenaw County Commissioner, District 11 [results]

The Democratic primary saw an impossibly close result, with Yousef Rabhi getting one more vote than Mike Fried (998-997). It seems that even with such a close result, there won't be a runoff election between Rabhi and Fried.

The Republican primary was won by an unopposed Joe Baublis.

---

So there's the results. I very much intend to write a lot more about the candidates as we head towards the November elections. If you want me to write about specific candidates or issues, leave a comment or send me an email.

Vapid News Reporting

(By Andrew MacKie-Mason)

Orin Kerr at the Volokh Conspiracy posted a very amusing "generic op/ed" for the recent decision in Perry v. Schwarzenegger. It's worth a quick glance for people who are tired of thoughtless commentary.

Appealing Perry v. Schwarzenegger

(By Andrew MacKie-Mason)

Perry v. Schwarzenegger is currently in a phase between judgment and appeal. There are a few things that people interested in the decision should know:

• Judge Walker denied a motion by the defendant-intervenors (the groups who worked to pass Proposition 8) to issue a stay pending appeal. A stay would have preserved Proposition 8 until the appeals of the decision were finalized (i.e. until after the 9th Circuit ruled on it and the Supreme Court either also ruled or declined to take the case.) Judge Walker did delay the implementation of his ruling until next Wednesday at 5 p.m. (8 p.m. EDT) so that the 9th Circuit would also have a crack at the stay issue before the ruling goes into effect. [source]

Personally, I think the plaintiffs who won in front of Judge Walker shouldn't have opposed the request for a stay. A stay would have made the pace of this case much more deliberate and decreased the chance that a higher court would view Judge Walker's actions as an abuse of discretion. Of course, Judge Walker was bound to follow the law in his decision on the stay application, and such political considerations would have been improper (I believe) for him to take into account.

• There is a dispute about whether Walker's ruling will actually be appealed. The named defendants (California and its various officials) do not wish to appeal the decision, just as they didn't actually want to (and didn't) defend Proposition 8 at the trial level. The proponents of Proposition 8 successfully intervened at the trial level to provide a defense for Proposition 8, but their standing to intervene at trial does not necessarily give them standing to appeal the ruling. Imperial County, California (one of the counties that voted overwhelmingly in favor of Proposition 8) is also attempting to appeal the ruling. They tried to intervene at the trial level in defense of Proposition 8, but were not allowed to.

The standing issue is centered around Article III of the United States Constitution and controlled by Diamond v. Charles. An intervenor can only appeal a ruling if they have a specific interest in it and if they would suffer a certain harm from the ruling. They cannot appeal a ruling simply because they disagree with it. From Diamond:

This Court consistently has required, in addition, that the party seeking judicial resolution of a dispute "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct" of the other party.

In Diamond, a pediatrician was not allowed to appeal to the Supreme Court when the Court of Appeals struck down an abortion law and the state declined to appeal the case further. In general, states are the ones with an interest in protecting state laws against claims that they're unconstitutional. Other parties must show that they have personally suffered actual or threatened injury if the law is overturned, not merely that they wish to make the state follow the law in general.

But "the power to create and enforce a legal code, both civil and criminal" is one of the quintessential functions of a State. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 458 U. S. 601 (1982). Because the State alone is entitled to create a legal code, only the State has the kind of "direct stake" identified in Sierra Club v. Morton, 405 U.S. at 405 U. S. 740, in defending the standards embodied in that code.

Diamond did allege a personal "injury:" namely, that if abortions were limited there would be more children, and thus more work for him as a pediatrician. However, this type of "injury" is speculative and not enough to confer standing to sue.

Diamond asserted one more issue of standing that is relevant to the Prop 8 case, that he had standing as the parent of a child who could be prescribed things without his knowledge if the law were invalidated. The Supreme Court said:

Diamond has not shown either that his daughter is currently a minor or that she is otherwise incapable of asserting her own rights. Diamond's failure to adduce factual support renders him incapable of maintaining this appeal in his capacity as a parent.

So how does this relate to Perry? If the Court of Appeals and the Supreme Court follow Diamond faithfully, they will likely not allow the proponents to appeal Judge Walker's ruling. The proponents do not have a judicially cognizable interest in Prop 8 being enforced in its own right. They must demonstrate the likelihood of injury if Prop 8 is not enforced. And to the extent that they could muster possibilities of injury, they "[failed] to adduce factual support" for those arguments at the trial level.

What about Imperial County? Will they be able to appeal? Their claim seems a bit stronger (after all, the government has an interest in protecting laws), but I suspect that it will still fail. So far as the national government is concerned, Imperial County does not exist as a political unit. They are merely a subdivision of political authority created and authorized entirely by the State of California, at its own discretion. My guess is that the federal courts will say that the interest in enforcing state laws and constitutional amendments rests with the state, not with subdivisions of that state. Things might be different if there was a county/city ordinance at issue, but there is not.

There is a way that the county could hypothetically get standing, but it's very convoluted. Suppose that Judge Walker's opinion is not appealed, because no party with standing wishes to initiate an appeal. Then, suppose that two men in Imperial County, California wish to get married, but county officials refuse to take the required actions to approve the marriage. The couple would have two options at that point: demand that the state compel the county officials to issue the proper documents, or file suit against the county officials directly. If they took the later path, then Imperial County would end up with standing to challenge Judge Walker's ruling in higher courts. However, such a possibility seems unlikely, and at the very least far off.

So, the bottom line at this point seems to be that Judge Walker's opinion will likely not be reviewed on the merits by a higher court.

Marriage As A Gendered Institution

(By Andrew MacKie-Mason)

One of the most interesting arguments in Judge Walker's Perry v. Schwarzenegger opinion is that marriage is no longer a gendered institution. What he means by this is that separate roles for men and women in marriage (men as the breadwinners, women as the caretakers, men as the heads of a household, women as the homemakers, etc) are no longer a valid part of the relationship. Women are no longer the property of their husbands, and the state does not consider the gender of individuals in a marriage (except when it prevents same sex couples from marrying).

Judge Walker's argument goes on to say that if the marriage relationship has no gender roles any more, then any gender restriction in a marriage is unjustified.

Does this argument work? Professor Matt Franck (political science, Radford University) doesn't think so. He wrote an opinion piece for Public Discourse that is positively dripping with venom for Judge Walker. He characterizes walker as a judge-advocate (and yes, I'm pretty sure that Professor Franck realizes that Walker is not a member of the military), and says that Walker's arguments are "transparently bad".

Franck's primary argument seems to be that while the gendered roles in marriage have disappeared, the gendered relationship is still important, and that Judge Walker avoids this by mere sophistry. But does Franck's position hold water, or is he the real sophist?

Franck accuses Walker of confusing equality with equivalency. That is, he says, just because men and women are equal in marriage does not mean that they are equivalent. And it is certainly true that there is a distinction between equality and equivalency. Keepers and strikers may be equally important on a soccer team, but they are certainly not equivalent. Christianity and Islam may be given equal status as world religions deserving of respect and acceptance, but that does not mean they are equivalent. Skiers and snowboarders may be equal users of a mountain, but that does not mean they are equivalent in how they use it (as any participant in snow sports will tell you.)

But is Walker making the equality/equivalency fallacy? No, not really. His argument is not that men and women are merely equal in the marriage relationship; it is that they are actually equivalent. If you looked at a marriage, with all its duties, rules, and responsibilities, you would not be able to tell a man from a woman absent some outside knowledge of gender.

Franck says, "The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is." However, what Judge Walker was arguing is not that there is mere equalization of status between men and women, it is that there has actually been an obliteration of difference. And with that obliteration of difference between men and women in the marriage relationship, the idea that the relationship of opposites is still important fails. If gender plays no role in marriage, why does the combination of genders matter? One might as well say that it is important that all marriages consist of one blonde and one brunette.

Franck's piece is well written and his arguments are easy to agree with (though it would be easier if he at least tried to hide his absolute contempt towards Judge Walker and all those who think that same sex marriage should be protected by the Constitution). However well constructed, though, it is his writing, not Judge Walker's ruling, that attempts to persuade via rhetorical tricks.

John Yoo on Perry

(By Andrew MacKie-Mason)

John Yoo (for those who don't remember the name, he's one of the lawyers who helped the Bush Administration justify torture and is now a law professor at UC Berkeley) wrote an opinion piece for the Wall Street Journal criticizing Judge Walker's decision in Perry v. Schwarzenegger. Though I note with some measure of relief that Professor Yoo supports equal marriage opportunities "as a policy matter," his reasons for criticizing Judge Walker's decision are mainly ridiculous. I'll address as many of them as I can tonight (hopefully without this post becoming extremely long).

First, Yoo predicts that Perry will bring about a political firestorm, especially for Democrats, and says "For all this, Mr. Obama and the nation have to thank Judge Vaughn Walker." This seems like a very peculiar criticism. It is almost as though Yoo is saying that judicial decisions should only be made based on what is politically expedient. While his time in the Bush Administration suggests that that may actually be his view, it is clearly not a reasonable one for a law professor to hold.

Yoo next claims that Judge Walker overstepped the bounds of his authority.

A single judge, he elevated himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials. We all fondly hope that our government acts only to improve the welfare of society. But Judge Walker believes that this job is best done not by elected legislatures or executives, but by a single judge armed only with social science studies.

Of course, this fundamentally misstates the nature of the judicial system. Judge Walker did not "[elevate] himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials" as "a single judge". He did so as a member of the judicial branch, sworn to uphold the Constitution and resolve the disputes brought before them. It is not Judge Walker who "believes that this job is best done not by elected legislatures or executives, but by a single judge armed only with social science studies". It was the framers of the Constitution and of the Fourteenth Amendment who thought that protection of certain values was best done by an elite and independent judiciary rather than executives and legislatures subject to direct electoral pressures.

Just saying that these things are in the Constitution is not, of course, a good argument that they are correct. Perhaps the judiciary is too strong. But Professor Yoo is deceptive when he takes aim at Judge Walker on this issue. His ire would be proper aimed at the Constitution, not at "a single judge" who is merely upholding his oath to that Constitution.

Yoo them employs the "bigotry" argument that I already criticized when Professor Lund of George Mason Law tried (just as unconvincingly) to make it. I won't rehash that discussion here other than to say that there is a large distinction between rational governmental action and rational personal belief (especially issues stances of politicians).

The next failed attempt Yoo makes is to criticize Walker's evidence without actually addressing that evidence. He says:

Judge Walker's social science studies could not have relied on much data, as only a handful of states allow gay marriage and none has done so for longer than seven years."

Yoo's criticism of the social science that Walker's findings of fact are based on is not credible, mostly because Yoo is speculating even more than he claims Walker is. An intellectually honest writer would have looked at the studies Walker actually worked off of and determined whether or not they had enough data, rather than just claiming that they "could not have relied on much data." It is a claim of "no data" based on...even less data.

Professor Yoo then turns to one of the most common (and most fallacious) argument against equal marriage as a constitutional right: the slippery slope.

Imagine if the courts were to apply Perry's approach consistently. Many have observed, including Justice Antonin Scalia in dissenting from the ruling in Lawrence v. Texas (2003), that no logic distinguishes antisodomy laws (struck down in that case) and gay marriage bans from prohibitions on adultery, prostitution, polygamy and pornography, or from age limits on marriage and sex. All laws based on morality would be unconstitutional.

I've already addressed the plural marriage (the proper, general term for polygamy) issue here (in addition to incest, which Yoo does not metion). Adultery, clearly, is not a valid offense for the government to prosecute, though some states still have laws against it that are rarely, if ever, enforced. (In my own Michigan, adultery is apparently punishable by life in prison.) Bans on prostitution are questionable, but clearly supportable on far different grounds that the marriage of same sex couples (such as the risk of economic exploitation, harm to public health, etc.) Pornography bans, as far as I know, have already been struck down under the First Amendment except in certain circumstances (i.e. child pornography, which can be regulated under exploitation rationale). And the age related laws that Yoo mentions are clearly a separate issue. Though I would question their constitutionality, they too are supported by different rationale than bans on equal marriage, most notably exploitation and the ability to consent. They are not mere expressions of private moral judgments.

Yoo then makes an interesting (mostly because it is so weak) claim:

Suppose the courts demanded that other laws survive this heightened test of rationality. Did the stimulus and bailout bills increase economic growth and reduce unemployment? Do the drug laws improve health and reduce crime? Is the redoubled use of drones to kill al Qaeda leaders making the terrorism problem better or worse?

Here, Yoo makes a mistake that any of his law students should be able to catch: he ignores the fact that Perry did not rule that all laws must pass the rationality test. Proposition 8 was subject to rationality review because it otherwise violated the Equal Protection Clause. None of these other laws or governmental policies raise equal protection issues in the same way.

Yoo also ignores the actual criterion of the rationality test: whether there can be reasonable debate about the facts at issue. In the case of Proposition 8, the evidence led the judge to the conclusion that there could not be a reasonable debate. The standard Yoo implies in the above characteristic is that the rationales for a law must actually be correct, not just that there needs to be reasonable debate about them.

Yoo next returns to his original mischaracterization of Judge Walker's actions.

The Constitution does not set up the federal courts as a roving commission of do-gooders to correct all of the nation's problems.

Of course, Judge Walker did not act as a "roving" "do-gooder". He took a dispute properly placed before his court and issued a ruling resolving that debate. He performed exactly the judicial role envisioned by the framers of the judicial branch.

The next attack on the decision is through the federalism rationale:

This distortion of the judicial role and rending of the political fabric are wholly unnecessary. The Constitution creates a far better approach to decide contentious moral issues: federalism. Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences.

It is true that we live in a somewhat decentralized political system, but Yoo knows perfectly well that that decentralization is not absolute. The United States is still a single nation, and certain things (such as equal protection and due process under the law) are deemed important enough that they are imposed from above on all of the states. To the extent that Yoo doesn't like federal imposition of rights, he is free to "vote with his feet" and move to another country, or try to change the Constitution. He should not, however, dishonestly claim that the recognition of rights at the federal level is contrary to our American system of federalism.

Overall, Yoo's commentary has one valid theme: that, perhaps, this is too soon to pursue marriage equality in the federal courts. But in every other way, his article is fatally flawed. He attacks the wrong people for the timing of the decision (suggesting, somehow, that federal judges should refuse to do their duty by not deciding the cases that are put before them) and presents weak arguments for either banning gay marriage or allowing further experimentation in the states. It's disappointing to see this level of commentary from such an educated individual.

Teaching The Bible

(By Andrew MacKie-Mason)

Howard Friedman posted a blurb about a conflict in California over a Bible as/in Literature And History course in a public school district.

Such classes present a relatively clear conflict of principles, but that conflict is also easy to deal with (in principle). So long as such a course is taught only as a literature and history course, there is no problem with it. In fact, it is probably a good thing, since Christianity has doubtless played a major role in world history. If the course serves as religious instruction (even if it is voluntary and does not constitute indoctrination) it is not proper.

Many things in the first news story and the second news story about this course suggest that it will be entirely non-religious.

Envisioned by the board's Vice President James Na, the class will focus on giving students an understanding of the Bible's influence in history, literature, religion and politics. It will offer a survey of the Bible, beginning with the historical context of the Old Testament, and then will focus on the New Testament later in the semester. It will also provide students with a historical knowledge of the Middle East...

"The preface of the textbook...states, 'The Bible has been and still is one of the most influential books ever published. Its influence is seen in literature, art, music, culture, public policy and public debate,'"...

Na suggests that the concern stems from confusion. "Most calls from parents...were coming from misunderstanding of this class," he explains. "They are afraid we are going to indoctrinate their children, which is not true. We are offering an elective class -- not a religion class." [The distinction between elective classes and religion classes is, of course, a false one. --AMM]

However, some other quotes suggest that there is a strong religious motivation behind the Board's decision to offer the course.

Fred Youngblood, president of the Board of Education, believes the course will better equip students in life, and he hopes other school districts will offer a similar class.

"It is my belief that better understanding the Bible will help all students with their decision-making process," he explains...

He believes the Bible will make a helpful impact in the lives of the students.

"The Bible has been a part of my life ever since I could remember. It has had a very positive influence on me and my family," Youngblood shares. "It is my hope that our students will have a better understanding of the impact the Bible has had on all that surrounds us."...

"More districts' members should pay attention to the needs of the community and the students," suggests Na. "[The Bible] will bring greatness in students' lives. I would like to thank God and Christian parents who are going to support this class."

So how to resolve issues like this? There should be a presumption of appropriateness; we should assume that the district will make the class non-religious and merely literary and historical. However, that presumption will, of course, be rebuttable by evidence once the course begins. If there is evidence of religious education, it should be stopped.

Is the school attempting to teach Christian theology and morality? Probably not. But it is certainly odd to see statements like "[The Bible] will bring greatness in students' lives" and "understanding the Bible will help all students with their decision-making process".

Political and Violent Video Games

(By Andrew MacKie-Mason)

Schwarzenegger v. Entertainment Merchants Association, a case about the constitutionality of state regulations of video games sold to minors, is in the Supreme Court (the merits brief for the petitioners has already been filed). The National Youth Rights Association (NYRA) wants to compile a list of violent video games that have political themes, to make the point that games can be a valuable form of speech. If you can think of any video games with political themes, post them here.

Immorality, Illegality, and Unconstitutionality

(By Andrew MacKie-Mason)

I'm going to take a step sideways from my discussion of marriage equality to talk about a different, but related, issue: the intersection of morals, laws, and constitutions.

All too often, it seems, we confuse these three concepts. We think everything that is immoral should be illegal, everything that is moral should be protected by our constitution, and everything illegal must also be unconstitutional... But it is impossible to have a useful conversation about any of these concepts without acknowledging that they are separate. In fact, I'll go ever further and say that we must recognize the separation of personal morals and social morals.

I was reminded of this by Michael Sean Winters (hat tip to Rick Garnett) who said:

There are many politicians who may or may not be morally opposed to abortion but think that the coercive power of law is not the appropriate tool for preventing the incidence of abortion. This position can easily go too far as well, falling into the lame “I am personally opposed, but…” position held by many pro-choice Democrats.

This gets at one of the issues where these four different categories (personal morals, social morals, laws, and constitutions) have be hopelessly confused, to the detriment of the overall discussion.

At the level of personal morality, one may think that an abortion is wrong as a matter of personal conscience. This would lead to a personal refusal to participate in abortion, and perhaps advice to friends to also refuse to participate in abortions. Or, one may think that abortion is right as a matter of personal conscience (most likely in a certain set of circumstances). This would lead to personal decisions to have an abortion as well as support for others who chose to do so. However, those who hold a view on abortion as a matter of personal morals would not think that others were wrong for not sharing their view, since personal morality is, after all, specific to the individual. This is, in many ways, the level of belief that demonstrates the most humility, since people acknowledge that, while they hold a certain belief, they are not certain enough to impose that belief on others.

Moving upwards, if you will, we arrive at social morality. These are beliefs that people think are important enough to convince society of, so as to make acceptance of them the norm. People who oppose abortion as a matter of social morality would seek to condemn those who participate in abortion. While not employing the force of law, they would use social tools (such as ostracizing abortion providers) to convince people that abortion is bad. Social opposition to abortion can be justified on the belief that abortion harms a society's collective morality, and thus makes an entire society worse off. On the other hand, of course, there are people who believe that our social system of morality should recognize the right to abortion (in specific circumstances?) and who use those same tools to convince others of that fact.

Next, the issue of legality: should abortion be a criminal act (or civilly actionable)? While it would be rare to find a person who thinks that abortion is morally alright but illegal, questions of legality present different factors for consideration that questions of morality. (After all, as Perry v. Schwarzenegger reminds us, imposing morality is not a legitimate governmental interest.) Does regulating abortion fall into a governmental role? And even if it does, is the coercive power of law the right way to deal with the problem (if a problem exists)?

As to constitutionality: constitutions (in the American sense) are meant to do two things: set the operating plan of a government and define the principles that we hold so important that reconsideration of them is removed from the everyday political discourse. No matter which way one comes down on the issue of legality, constitutionality presents different concerns: is the right to abortion so fundamentally important that it deserves constitutional protection, or is abortion so fundamentally evil that it requires a ban in the constitution?

These four levels are an important tool for people seeking to figure out exactly where they stand on an issue. And it's not limited to abortion. Marriage equality, state sponsored killing (be it the death penalty or questionable war policies), religious tolerance...they can all be examined on the different levels, and it will hopefully help us move away from pointless partisanship. Rather than issues being cast in black and white, there will be gradations, and we can find common ground and compromise that much easier.

Civil Marriage or Civil Unions?

(By Andrew MacKie-Mason)

One of the most interesting aspects of the marriage equality debate has been the creation of "civil unions," meant to convey the rights and benefits of civil marriage without its symbolic importance. Civil unions were also an important background aspect of Perry v. Schwarzenegger, since California offered very progressive civil unions to homosexual couples.

So are civil unions enough? Judge Walker said that they aren't, and I think he's right: so long as the state also recognizes marriages. This is where the legacy of Brown v. Board of Education comes into play: by strictly separating homosexual unions from heterosexual unions, the state does not ensure equality: instead it ensures inequality. "Marriage" retains its symbolic and cultural importance, which homosexual couples are not permitted to cash in on.

But what about people like Robert Hockett, who think that government should get out of the marriage world entirely, and only offer civil unions? Such a set of laws is workable, I think, and would probably satisfy many of the opponents (as well as proponents) of equal marriage. The key is that the state must either offer marriage to everybody or to nobody. It cannot offer some of its citizens marriages and some of them civil unions.

Why will this likely allay the concerns of people who oppose equal marriage opportunity? Much of their concerns seem to be with the word "marriage" and its traditional definitions. While there is still a large portion of the country that opposes civil unions for homosexuals, it is a smaller portion than those opposed to equal marriage for homosexuals.

What's ironic is that absolutely nothing is protecting the word "marriage." There is no way to stop any gay couple from saying that they are married. Sure, they won't have a document saying that they're married, but that doesn't mean that they can't choose to describe their relationship as a marriage.

So, should the government stop offering marriages and only offer civil unions? Perhaps. But then again, anyone who finds a major issue in the difference between "civil marriage" and "civil union" has an extreme attachment to terminology that does not seem justified.

Same Sex Marriage, Plural Marriage, and Incestuous Marriage

(By Andrew MacKie-Mason)

Back in March I blogged about the fallacious argument that supporting the right of two people of the same gender to marry is not the same as supporting plural (polygamous and polyandrous) marriages. There are many arguments against plural marriages that are not applicable to homosexual marriages, mainly based on the fact that the benefits of and laws surrounding marriage are designed for two individuals. Relationships between more that two individuals would have to be dealt with differently for tax, property, custody, etc purposes. As far as the state is concerned there are no gender roles left in a marriage, but there certainly are aspects of marriage that only make sense as the relationship of two individuals.

This false equivalence (homosexual marriage to plural marriage) is back now, in the wake of Perry v. Schwarzenegger, along with the additional idea that allowing homosexual marriage means we must also allow incestuous marriage.

The plural marriage argument is stated by someone named David in this open comment thread at the Volokh Conspiracy. He says:

Plural marriage has been brought up a couple times in this thread. But I have not seen anything in the decision or comments as to why the decision could not be applied to invalidate polygamy or any other form of plural marriage.

This betrays a lack of understanding of Perry. Perry declares a general right of marriage, but it does not say that this right is absolute, such that any group of people should be allowed to be married. It is subject to restriction if there is a rational basis (under the Equal Protection clause) and a compelling governmental interest (under the Due Process clause).

Where Perry speaks to abolishing gender restrictions on marriage, it has nothing to say about numerical restrictions (interestingly, supporters of plural marriage may find more support in Citizens United than in Perry). There are many reasons that the government may restrict marriage to two people and may restrict individuals to a single marriage at a time: most notably (as mentioned above) tax and property rationales, at the least. (Of course, plural marriage is completely different from polyamorous sexual relationships: those, of course, would be protected under the Lawrence rationale, though I doubt anyone in the political mainstream is attempting to ban such relationships between multiple sexual partners.)

The incest question is presented by a commentator named Calderon on the same thread, who asks:

I have a serious question for those who support gay marriage, but oppose polygamy or adult incest, and that question is ... why? As a moral or ethical matter, what distinguishes the circumstances in your mind? And I should say that I support gay marriage, as well as legalizing polygamy and adult incest marriages, so I’m not trying to score some cheap political points. I’m genuniely [sic] curious about why people make distinctions between the two.

To address the incest question, we need to first separate incestuous sexual acts from incestuous marriages.

Incestuous sexual acts can be regulated under the rationale of protecting possible offspring, due to the genetic risks caused by procreation by closely related individuals. While consenting adults have the right to their sexual actions, they do not have the right to impose those risks on their children. (This may not apply to relationships where procreation is actually impossible, but the burden [I predict] would be on the individuals to show that their union was completely infertile.)

Incestuous marriage, on the other hand, requires a different rationale to ban than incestuous sexual acts, since marriage neither requires nor implies intercourse. The strongest argument against incestuous marriage is the various privileges accorded to married couples and those given to relatives. There may well be a governmental interest in not allowing the privileges of marriage to combine with the privileges of a parent-child or brother-sister relationship. Without delving into specifics that are beyond my knowledge, it is clear that the rationale for banning incestuous marriage is not equivalent to the various (overruled) rationales for banning homosexual marriage.

One should always be suspicious of arguments that conflate one possibility with other, less desirable ones. As has been shown before, the equivalency arguments that attempt to relate homosexual marriage, incestuous marriage, and plural marriage fail, and such claims prove to be based on little more than hysteria.