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Supreme Court: Obama raises taxes on middle class

The U.S. Supreme Court today upheld the mandate to purchase health insurance as a tax.

As an exercise of the Constitution’s Commerce Clause,” writes the Washington Examiner’s David Freddoso, “the individual mandate does not hold water. But under Congress’s taxing power, it is a legitimate provision.”

My quick analysis. Pyrrhic victory for Obama. He’ll have a few good days. Vote holding Eric Holder in contempt won’t get much media coverage.  But, decision could prove to be political headache for the president.  The court may have found the law constitutional, but it remains unpopular.  Mitt Romney will be able to use this against him:  the only way to repeal this law is to replace Obama.

So, if Obama celebrates the decision, he’ll be acknowledging that he broke this campaign promise:

UPDATE: Walter Olson offers a roundup of his tweets here.  Glenn has a great roundup here; seems others bloggers/blogresses have offered titles similar to my own.

Ann Althouse is more sanguine than are most conservatives, having “said repeatedly that Obama would be worse off if Obamacare were upheld, but what I’m really seeing is how bad it is for him with the mandate declared a tax.

UP-UPDATE:  From Ira Stoll, linked by Glenn above:

By calling the mandate a tax, the court made an official ruling that President Obama had violated his 2008 campaign promise not to raise taxes on anyone earning less than $250,000 a year. And the ruling also keeps ObamaCare alive as a political issue. A ruling that struck down the law might have energized Obama supporters. This ruling may make the law’s opponents even more determined to elect a Republican president and Congress so that they can repeal the law or, failing that, defund it.

UP–UP-UPDATE: “The Supreme Court,” quips Jim Geraghty, “just gave Mitt Romney a very, very useful line: ‘As President, I will repeal President Obama’s health care tax.’”

FROM THE COMMENTS:  boatseller forecasts that “in about 4 weeks, liberal bloggers are going to start chattering about a conspiracy between Justice Roberts and the Romney campaign to uphold the law in order to hurt the President.”  Heh.

“lawyers only assert lousy claims of privilege when they have something to hide”

A number of conservative bloggers have addressed the merits of the “administration’s assertion of executive privilege with respect to Fast and Furious documents”.  In this post, my friend John Hinderaker called that assertion “frivolous”:

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work.

If you have time, read the whole thing.  In a followup post, he “pointed out that lawyers only assert lousy claims of privilege when they have something to hide“:

So the presumption that there is damaging information in the documents the administration refuses to produce is very strong. In his defense, Eric Holder merely asks that we trust him. But why should we? The administration’s track record with respect to Fast and Furious–and Eric Holder’s, in particular–is one of serial attempts to deceive. Let’s itemize three instances.

Once again, read the whole thing.

Liberal blogger: courts not engines of social change

Posted by B. Daniel Blatt at 3:19 am - June 22, 2011.
Filed under: Blogging,Gay America,Legal Issues

I couldn’t agree more with this post from Matthew Yglesias:

Something that I think most people don’t realize is that for the vast majority of American history, the judicial branch has been a very conservative elite-dominated institution. Most people’s view of the matter is distorted by the historical aberration that occurred roughly between the Brown andRoe decisions, with a lot of good criminal justice decisions in between. Even there, one has to recall that with its landmark civil rights decisions, the Supreme Court was in large part just reversing what the late 19th century Supreme Court did by throwing out the civil rights legislation of the Grant administration.

Emphasis added.  Well said.  Read the whole thing.

There is much, much more to this, particularly as it pertains to gays.  I have always believed that social change comes from our communities, through private institutions and enterprises.  It is not the government’s role to foster social change nor to prevent it from happening organically.

Had I not chanced upon this piece a few minutes before bed, I might have more to say on it, but for now, I think it’s important to alert our readers to the post, especially because a liberal blogger is putting forward a view in sync with conservative legal scholars.

FROM THE COMMENTS:   Jim Hlavac offers:

Virtually all gains made by gay folks in the past 40 years towards our acceptance as decent people has been made without legislative or judicial help; and sometimes even despite laws and rulings against us. No court ruling is going to change anyone’s mind about us. Long before laws against us were removed we had already started the process of removing the negativism, person by person, mostly starting with our families and hetero friends. Even Bowers v. Hardwick did not dent the trend, nor did Lawrence push it. And the trend is still moving forward.

Exactly.  Read the whole thing!

Federal Judge allows gay softball league to set its own rules for participation (for now)

Last night, via this blog’s Facebook page, a reader alerted me to an article sure to cheer (momentarily) the hearts of all freedom-loving Americans:  a federal judge has ruled that a gay softball league can set its own standards for participation.

“It is not,” U.S. District Court Judge John Coughenour wrote in his ruling, “the role of the courts to scrutinize the content of an organization’s chosen expression.”  Nor should it be.

Three bisexual men filed a lawsuit in Washington state against the North American Gay Amateur Athletic Association (NAGAA) after they had been kicked off the team for not being gay enough.  Now, when I initially blogged about this suit last April, I called NAGAA’s rule limiting the number of heterosexual players “stupid” and found it “disgusting that a gay organization would not just countenance, but also conduct a public interrogation into individuals’ private lives.”  (It did so to find out if they were gay enough.)

That said, it’s a private organization and private organizations should be allowed to set their own rules.  Allowing it to do so, the judge

. .  refused to enjoin enforcement of the two-player rule. “Plaintiffs have failed to argue that there is a compelling state interest in allowing heterosexuals to play gay softball,” Coughenour wrote.

“NAGAAA might very well believe that given the history of gay exclusion for sports, the only way to promote competition for all persons, and ensure that gay athletes have the same opportunities as straight athletes, is to create an exclusively gay community with exceptions for a small number of straight players,” the ruling states.

The ruling wasn’t entirely rosy though. “Coughenour also ruled that the athletic association failed to prove it should not be subjected to public-accommodation laws as ‘a distinctly private organization.”  So, now we’ve got a federal judge determining such matters.  That is a truly chilling thought.  Shouldn’t the simple question be whether or not the group takes state money.

Let NAGAA set its own rules.  Indeed, let all private athletic associations do the same.  If a group of gay guys want to play softball with a group consisting primarily of their fellow gays, then more power to them.  It’s their choice.  Isn’t this land of the free?  And isn’t that what freedom means?

UPDATE:   John Yoo gets it: (more…)

HRC’s Thuggish Tactics

Well, last night after returning from a wonderful dinner with my Dad and his wife (including the best dirty martini I’ve had in a long while (thank you, Maureen!)), I went through my e-mail and read articles I had previously just skimmed on the decision of the law firm King & Spalding to end its representation of the “Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act.”  While I was aware of HRC’s involvement in the efforts to intimidate influence the law firm, dubbing them a “hissy fit” in a previous post, it seems the left-wing organization threw more than just a “hissy fit,” but instead mounted a concerted effort to get the law firm to drop this bipartisan group of federal elected officials as a client.

Via the diligent and determined Jennifer Rubin, we learn of phone conversations her Washington Post colleague Greg Sargent had with the liberal outfit:

The latest round got started this morning, when the Weekly Standardpublished an internal email from the Human Rights Campaign detailing that HRC had “contacted many of the firm’s clients” as part of its campaign to get King and Spalding to drop the case. Right wing bloggers, such as Jennifer Rubin, are pouncing on this as proof that the left engaged in an “unprincipled campaign” of intimidation to deprive the House of Representatives of legal representation.

Far from being abashed about this campaign, Fred Sainz, a spokesman for the Human Rights Campaign, shared new details about it. He confirmed to me that his group did indeed contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.

You’d think they have better things to do with their time.  Instead of developing strategies to reach out to social conservatives and offer arguments about treating gay individuals with dignity or work with gay Republicans to develop better arguments about the merits of state recognition of same-sex unions, HRC has been busying itself trying to deprive an elected branch of the federal government of legal counsel in its defense of legislation enacted in accordance with the provisions of the United States Constitution.

Even Attorney General Eric Holder is defending “former Solicitor General Paul Clement, after gay rights advocates criticized his decision to take on the defense of the Defense of Marriage Act in court.”  Clement quit his job at King & Spalding when the firm dropped the case.

That HRC would go to such great lengths to get a law firm to drop its defense of DOMA come as no surprise to us nor to other gay people familiar with the work of this left-wing outfit.  They have long since stopped being, as Sargent styles them, a “gay advocacy group”.  They’re not advocating for gay people, but instead seeking to deprive their adversaries of the opportunity to defend their positions.  Indeed, they’re behaving as if their adversaries don’t even have a right to their defense.

And they’re celebrating a law firms decision that has earned it rebuke from jurists “on both sides of the ideological divide“. (more…)

The politically correct bullying of King & Spalding

As expected, some of our savvier readers understood why I posed the thought experiment about a hypothetical business decision in Wisconsin in a post yesterday.  I was addressing both the failure of the state of California to defend Proposition 8 and of the federal government to defend the Defense of Marriage Act (DOMA).  Not to mention the hissy fit HRC and its allies threw when the House of Representatives attempted to retain the law firm of King and Spalding to defend the constitutionality of a law overwhelmingly passed by Congress and signed by a (Democratic) President.

Now, I don’t like that law and grant that some of DOMA’s provisions may indeed violate the “full fail and credit” clause of the constitution.  I think Congress should overturn it.  But, it is the law of the land.

I have many more thoughts on this issue and expect to address them in due time.  But, my father is in town and family takes precedence over politics.  So, while he and his wife are taking a nap to recover from jet lag, I have a brief moment to blog — and to take care of other pressing tasks.

As always, Jennifer Rubin can be counted on for insightful observations on a controversial matter.   She has posted, by my count, five pieces on the matter. Calling DOMA “rotten legislation“, she still believes its supporters have the right to defend it and faults the left for favoring “politically bullying to deter lawyers from representing clients it doesn’t like”.  Also read her subsequent posts on why King & Spalding decided to drop their defense of DOMA here, here, here and here.

Glenn Reynolds has a mini-roundup here.

Stacey McCain wonders what happens “When You Give in to Thuggery” and places before us the common sense of the matter in terms so plain and simple that we all can understand what’s at stake:

It is important to understand that the heart of the question raised by the King & Spalding decision is not whether we approve or disapprove of homosexuality, or even whether we support or oppose the legalization of same-sex marriage. What is at issue is whether the concept of “gay rights” should empower advocates of that agenda to bully and intimidate their critics.

John Hinderaker faults the left for politicizing the practice of law. (more…)

Thought experiment on constitutionality of employment non-discrimination laws

Posted by B. Daniel Blatt at 7:36 pm - April 25, 2011.
Filed under: Constitutional Issues,Freedom,Legal Issues

In 1982, Wisconsin was the first state to enact a non-discrimination law that prevented companies from firing individuals based on their sexual orientation.

Now, imagine if you will, a socially conservative business owner in rural Wisconsin who learns that a hard-working and  very reliable employee is gay.  In a misguided (but, from his point of view, well-meaning) action, this employer offers to enroll his worker in a conversion therapy program.  He refuses.   Their confrontation creates tension between the two, resulting in a decline in the employee’s work performance.  The employer fires him.

With the help of the ACLU and Fair Wisconsin, the employee takes the employer to court, contending the employer discriminated against the employee because he was gay (in violation of the 1982 statute).  The Alliance Defense Fund hears of the case and offers not just to defend the employer — but also to challenge the constitutionality of the Badger State’s 1982 law.

The Fund turns to the First, Ninth and Fourteenth Amendments to make a case for the employer’s rights of free association as well as his liberty and property interests.  Seeing this case as an opportunity to strike down not just the 1982 Wisconsin law, but other state mandates on employers’ rights, a number of libertarian groups join the suit.

Accepting these libertarian arguments, Governor Scott Walker and state Attorney General J. B. Van Hollen elect not to defend the law.

Now, while I contend that the libertarian argument may well have constitutional merit, I believe Walker and Van Hollen would be wrong not to defend the state’s law.

Before I write a post on a related matter, let me ask you, our readers to guess that related matter and why I offer this hypothetical.

NB: Tweaked the piece since I first posted it in order to improve the flow and make my point clearer.

Tucson: Failure of laws or their enforcement?

Posted by B. Daniel Blatt at 6:30 pm - January 16, 2011.
Filed under: Freedom,Gun Control,Legal Issues

Kudos to Bruce Drake for another report getting at the real problem posed by the Tucson shooting:

A top official in the Pima County sheriff’s office said Sunday that his department did not begin an investigation or take earlier action regarding Jared Lee Loughner despite his history of erratic behavior because his contacts with police were “relatively benign” and did “not rise to the level of causing us to be necessarily concerned about him committing a violent act.”

Richard J. Kastigar, chief of the sheriff’s Operations Bureau, acknowledged the controversy over the question of whether authorities should have moved earlier to look into the case of Loughner, who gunned down 20 people Sept. 8 outside a Tucson supermarket, killing six and critically wounding Arizona Rep. Gabrielle Giffords.

“A lot of folks have suggested that there were clues to his mental stability,” Kastigar said on ABC’s “This Week. “But we’re governed by laws. And the laws allow us to do certain things and restrict us from doing other things.”

Kastigar may well be right.   (This bears investigation.)  Do existing Arizona laws grant the sheriff’s department in Pima County (or other law enforcement body for that matter) the tools they needed to detain and/or incarcerate the disturbed young man who would become the shooter?

If this Pima County official is right, this then is the real problem for the Arizona legisalture:  how to craft a law that would facilitate the detention of mentally unbalance individuals who pose a danger to society without threatening the liberty of eccentric or otherwise moderately troubled individuals who pose no such danger.

Iowa Voters Reject Justices Who Mandated State Recognize Same-Sex Marriages

In Iowa, voters “removed three justices who participated in a ruling last year that made the state the first in the Midwest” to recognize same-sex marriages. While the governor appoints the justices in the Hawkeye State, they “have to stand for periodic retention votes, a system known as merit selection.

It seems voters approve judges a matter of course, but this time, a coalition of outside advocacy groups pushed for their removal because of their vote on same-sex marriage:

The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions.

Leaders of the recall campaign said the results should be a warning to judges elsewhere.

“I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”

“The risk of leapfrogging — or ignoring — public opinion on controversial issues was brought into sharp relief Tuesday,” New York Times writer A.G. Sulzberger observes, “when voters chose to remove all three justices who were on the ballot seeking new terms.”

“They are,” my former fellow Virginia Law Federalist Todd Zywicki writes, “the first Justices who failed to be retained since 1962, when the current system was implemented.”  Todd offers a good discussion of voters’ use of the power of retention, so just read the whole thing.  We could have avoided all this mess if judges deferred such matters to legislators who must answer to the people in biennial elections.

Todd’s post via Glenn Reynolds who offers, “I’m in favor of gay marriage, but I think it’s better that it happen legislatively. On the other hand, had these justices been retained it would have been democratic sanction for the decision. That’s a virtue of elected supreme courts.(more…)

Ninth Circuit Extends Hold on Ruling Overturning DADT

Posted by B. Daniel Blatt at 1:18 am - November 2, 2010.
Filed under: DADT (Don't Ask, Don't Tell),Legal Issues

Let us hope that in the lame-duck session of the Senate, Harry Reid has a strategy to push through repeal of Don’t Ask/Don’t Tell (DADT), given that the Ninth Circuit has extended the stay on the lower court ruling:

A federal appeals court on Monday indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

Brother of KY Senate candidate lies to police

Posted by B. Daniel Blatt at 12:57 am - October 24, 2010.
Filed under: 2010 Elections,Legal Issues

Which story,” David Freddoso asks, “do you suppose is more relevant — Aquabuddha, or this one?”

A Jefferson County prosecutor was tipped off by Louisville narcotics detectives twice in the past two years that he was under investigation for possible drug use or trafficking, according to police records obtained by The Courier-Journal.

When investigators learned of the leaks and interrogated the two detectives and the prosecutor last March, all three initially gave false or misleading statements about what happened, those records show. The statements of Matthew C. Conway, the prosecutor, were made under oath.

Conway just happens to be the brother of Kentucky Attorney General Jack Conway, you know the guy trying to make much about the (alleged) college antics of Ron Paul, his rival in the contest for one of the Bluegrass State’s seats in the United State Senate.

Detectives tipped Matthew off that his house was about to be searched for “drug use or trafficking”, giving the prosecutor time to remove any “contraband.”  We don’t know who tipped Matthew off.  We know someone tipped him off.  And when your brother’s the state attorney general, you wonder if maybe . . .

Over at the Daily Caller, Alex Pappas is asking this very questions, suggesting that the candidate may have tipped his brother off.   For the record, “Jack Conway’s office said in an e-mail to the [Louiville Courier-Journal] Thursday that his only involvement was to advise his brother to obtain legal counsel.

One other thing.  We know that Matthew lied about whether he had been tipped off.  When Louisville police realized there had been a leak, they launched an investigation, calling in the younger Conway.  He first denied being tipped off, then “went back and changed his story.

The question remains open as to who tipped off Matthew.  And if it wasn’t anyone in the state attorney general’s office, it would certainly behoove that Senate candidate to get to the bottom of this in the next nine days.

End DADT, but through Congress, not the courts

The military’s Don’t Ask/Don’t Tell (DADT) policy is, like many government policies, both gratuitous and counterproductive. It deprives the military of men and women eager and willing to serve our nation, while forcing officials who have better things to do (like defending our country in a dangerous world) to spend time rooting out otherwise qualified (and sometimes even exemplary) servicemembers.

That said, I’m concerned about the recent court ruling.  Like Patterico, I “support the result but . . . hate the way it’s being done.”  As does apparently Defense Secretary Robert Gates:

Defense Secretary Robert Gates said Wednesday that abruptly ending the military’s “don’t ask, don’t tell” policy as a federal judge has ordered would have enormous consequences. . . .

“I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training,” said Gates. “It has enormous consequences for our troops.”

The defense secretary, who has supported lifting the ban, said that besides new training, regulations will need revisions and changes may be necessary to benefits and Defense Department buildings.

One of the merits of the Obama Administration approach had been to push for legislation which would give the military time to draft new regulations and prepare to implement repeal.  Yet, because Senate Majority Leader Harry Reid failed to schedule debate on such legislation at a time and in a manner likely to secure passage, they haven’t been able to realize the benefits of this sensible approach. (more…)

What New Hampshire teaches us about gay marriage

Last week in a piece for the Advocate, Drew Sweetwater wrote:

In California from 1999 to 2003, Democrats controlled the state legislature, and there was a Democratic governor, Gray Davis. During this time marriage equality (sic) legislation was not made law and upheld in California.

To the present time, many gay rights activists are comfortable dumping millions of dollars into the campaign war chests of Democrats running for office — Equality California, the Human Rights Campaign, and other so-called nonpartisan gay organizations — and they have nothing to show for it. Talk about a bad, fraudulent investment.

He notes a well that at the national level, neither the 110th nor the 111th Congress, both controlled by Democrats, have moved forward on repeal of DOMA.

But, Calfornia is a special case.  The leading gay advocacy group, “Equality California,” while, little more than a (gay) front group for the California Democratic Party has great sway in a state capital dominated by Democrats.  And they wear their partisanship on their sleeve.  Stroll down the street in the city where Drew and I live and you’ll see their storefront headquarters decorated with Boxer and (Jerry) Brown signs.

They’ve long had influence in Sacramento, but never use that influence to put forward innovative solutions to address their concerns.  Instead, they constantly lobby for measure upon measure, assuming that whatever they want, they can get through the legislature.

Well, that’s not always the case.  In the wake of the passage of Prop 22 in 2000, a measure which codified the traditional definition of marriage as one man and one woman into state law, they stomped their feet and gnashed their teeth and hoped and prayed some nice, kind judge would spare them the hard work of making the case for state recognition of same-sex marriage. (more…)

Walker Keeps Stay on His Ruling for Six Days

Posted by B. Daniel Blatt at 5:00 pm - August 12, 2010.
Filed under: Gay Marriage,Legal Issues

I may have something to say about this later:

A federal judge put gay marriages on hold for at least another six days in California, disappointing dozens of gay couples who lined up outside City Hall hoping to tie the knot Thursday.

Judge Vaughn Walker gave opponents of same-sex weddings until Aug. 18 at 5 p.m. to get a ruling from the 9th U.S. Circuit Court of Appeals on whether gay marriage should resume. Gay marriages could happen at that point or be put off indefinitely depending on how the court rules.

A quick review of the article makes this seem like a just compromise, given the circumstances.

Another ride on the California gay marriage rollercoaster

Posted by B. Daniel Blatt at 4:18 am - August 4, 2010.
Filed under: California politics,Gay Marriage,Legal Issues

Via various sources (including this one), I learn that a decision is expected sometime between 1 pm and 3 pm today (PST) in the federal case seeking to overturn Proposition 8.  “It will be available electronically to the public not only through PACER but also directly from the court’s website, , free of charge soon after it is e-filed.”

I expect that Judge Vaughn Walker will overturn the popular initiative.  And while gay activists will be giddy, they are only setting themselves up for future disappointment.  Given the make-up of the Ninth Circuit, it may sustain his opponent, only to have their decision struck eventually down by the U.S. Supreme Court.  Another ride on the California gay marriage roller coaster, jubilation following a judicial ruling, disappointment and bitterness when it’s overturned.

Should Walker uphold Prop 8, watch for gay activists to demonize him as some kind of Anti-Christ.

That said, his verdict in favor of the plaintiffs, the gay couples seeking to overturn the constitutional provision, would be a huge boon to Republicans in the Golden State.

A Republican won’t gain any votes by supporting the ruling.  (So doctrinaire are those for whom the issue is their primary concern that they’d never support a Republican no matter how broad-mind he  or she was.)  But, opposition to the ruling could help Republicans make inroads into certain segments of the Democratic base when some Democrats who supported Prop 8 see a Republicans criticizing a court which overturned by fiat an issue they passed with their ballots, they might reconsider their partisan affiliation. (more…)

Susan R. Bolton Hands GOP A(nother) Campaign Issue

Posted by B. Daniel Blatt at 4:06 pm - July 28, 2010.
Filed under: Illegal Immigration,Legal Issues

While at the gym earlier today doing cardio, I watched to see the various CNN anchors and reporter jubilant that Clinton appointee Judge Susan R. Bolton striking down the most “controversial” provisions in Arizona’s immigration law.

Given that poll after poll after poll has shown that a sizable majority of Americans support this law, this can only strengthen the hand of Republicans going into the fall elections, particularly given the Democratic Administration’s grandstanding opposition and successful suit.

Here, you have two issues, immigration and judicial overreach redounding to Republicans’ benefit.

Tea Party Groups Silent on DOMA Ruling

While I would prefer that the Tea Party groups acknowledge how Judge Tauro’s use of the Tenth Amendment could further their small government agenda, I do take a least a little bit of comfort in their decision to remain silent on the ruling:

While many conservative organizations immediately decried a federal judge’s decision last week to invalidate the federal ban on recognizing gay marriages, tea party groups have been conspicuously silent on the issue.

The silence is by design, activists with the loosely affiliated movement said, because it is held together by an exclusive focus on fiscal matters and its avoidance of divisive social issues such as abortion and gay marriage. Privately, though, many said they back the decision because it emphasizes the legal philosophy of states’ rights.

The comfort I take is related to that part I emphasized above.  The silence provides further evidence of the Tea Party focus on matters fiscal and further and so helps undermine the left-wing/media/Democratic narrative of sinister racist or anti-gay forces dominating the movement.

Washington Post writer Sandhya Somashekhar quotes one activist who pretty much sums up what’s at issue here:

Everett Wilkinson, state director for the Florida Tea Party Patriots, agreed: “On the issue [of gay marriage] itself, we have no stance, but any time a state’s rights or powers are encouraged over the federal government, it is a good thing.”

NB: Tweaked the text slightly as I had initially written it in haste.

Case Overturning DOMA provision gives gay Americans and conservatives reason to cheer

It is not often when a judge hands downs a ruling which ostensibly benefits gay people while using legal arguments correspondent with conservative ideals.  In many cases, judicial action sought by gay activists relies on strange logic relying on principles at odds with our ideals (& constitutional guarantees) of limited government, separation of powers and federalism.

Occasionally we see a ruling which causes the libertarians among us to cheer while making social conservative grimace, e.g,. Lawrence v. Texas which struck down state sodomy laws.  (While I like the result, I wish they had worked it through the Ninth Amendment, reactivating that often ignored provision, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.“)

Now, while I’m wondering if the federal benefit at issue in Gill v. Office of Personnel Management, the federal court case striking down a provision of the Defense of Marriage Act (DOMA) on Tenth Amendment grounds, will cause appellate courts to overrule Judge Tauro, this ruling (at least for now) remains a decision that both gay people and conservatives can cheer.

Gay people should be pleased that DOMA will not prevent partners from getting benefits to which they are, by dint of their relationships, should be entitled.  Conservatives should be delighted by the invocation of the Tenth Amendment; courts are recognizing (as they long ago should have recognized and once did) what the Founders made explicit:  the federal constitution creates a government of limited powers.

While we don’t hear this too often within gay activist circles, it needs be said.  Any law which limits government and expands freedom benefits gay people, not just because of our sexual orientation which makes us different from the social “norm,” but also because we’re individuals just like everyone else.

Freedom is good for all people.

Tenth Amendment Jurisprudence Serves to Invalidate DOMA Provision

When I first read U.S. District Judge Joseph Tauro ruled that portions of DOMA were unconstitutional because the legislation “interferes with the right a state to define marriage“, I wondered which provision in the federal constitution he used to justify his ruling.

Now I like the result because I believe that same-sex partners should be allowed Medicaid benefits, the issue in this case.  And those seeking those benefits had sought the protections of marriage.  But, I feared it may have been based on shady constitutional logic where the judge (or justice) found his justification in illuminations refracted from reflections in the charter’s penumbrae.

Thus, when I looked into matter, I was delighted to learn that Judge Tauro had rooted his decision in the Tenth Amendment.  That provision reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  So, favoring a federal government of limited powers, I think he’s on pretty solid ground.

But, from Volokh, we learn that some liberals are wary of rooting the decision in this oft-ignored provision:

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.”

If you have time, read all of Balkin’s post; I thought that David Kopel did a good job of summarizing the key points–at least those I wanted to address, so I just quoted his introduction above.  (His post is also a good one.)  We conservatives should welcome a decision limiting the federal government’s regulatory role to those powers delegated to it by the Constitution.

And I believe states should define marriage. (more…)

A Bad Day For Hate Criminals

Posted by ColoradoPatriot at 10:48 am - June 28, 2010.
Filed under: Legal Issues,Supreme Court

For all the hoopla about President Obama’s signing last year of the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act (a completely unassociated rider to the Defense Authorization bill for this year, in a cynical and overtly political attempt to wrestle Republican votes that would otherwise never have occured), today is actually a monumental day for gay and lesbian rights.

For it is today that the Supreme Court has decided in the case of McDonald et al. v. City of Chicaco, Illinois, et al., that:

Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully applicable to the States.

If you want anti-hate-crimes laws, you can’t do better than allowing gays and lesbians to defend themselves with firearms. And that SCOTUS two years ago in District of Columbia v. Heller ruled that the Second Amendment says what the Second Amendment says, they established this common-sense approach to our Liberties.

Further, that today SCOTUS applied these rights to individuals, by incorporating them through the 14th Amendment, you couldn’t get any more equal protection for gays and lesbians.

Truly a great day for Liberty and equality today.

-Nick (ColoradoPatriot, from HQ)