Same-sex marriages in California possible on August 18

U.S. District Judge Vaughn Walker, the judge who ruled that the state’s ban on same-sex marriage is constitutional, lifted the stay on his decision as of Wednesday, August 18, at 5pm PST.

The evidence presented at trial and the position of the representatives of the State of California show that an injunction against enforcement of Proposition 8 is in the public’s interest. Accordingly, the court concludes that the public interest counsels against entry of the stay proponents seek.

Of course, that’s assuming that the Ninth Circuit Court of Appeals stays out of it. That’s not likely. Proponents of Proposition 8 have already filed an appeal. The Ninth Circuit could very well re-institute a stay pending their decision, or, if they decline, the Supreme Court could as well.

It might not even get that far; something interesting from SCOTUSBlog notes:

The judge raised the possibility that the backers of Proposition 8 — the ban approved by the state’s voters in 2008 — may not have a legal right to appeal his decision, since state officials have declined to defend the ban and seem unlikely to pursue their own appeal.  The judge declared: “If the state [officials] choose not to appeal, proponents may have difficulty demonstrating Article III standing” — that is, the legal right under the Constituton to be in court.

"Irrational Prejudice"

I’m on my way out of town right now, but a pretty huge development occurred yesterday that really needs mentioning before I go. In two decisions yesterday,  Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management, U.S. District Judge Joseph Tauro held section 3 of the Defense of Mariage Act (DOMA) unconstitutional.

The Defense of Marriage Act, which was passed back in the ’90s in a cynical play against a weakened President Clinton when same-sex marriage was barely on the horizon, prohibits the federal government from recognizing either state-sanctioned or non-state-sanctioned same-sex marriages and protects states from recognizing those performed in other states.

However, several states now fully recognize same-sex marriage, and it’s come to the fore whether this law is in fact constitutional. See, it is traditionally recognized that the constitution gives states the power to define and regulate marriage. Assuming no legitimate government interest in regulating such marriages, DOMA, then, would be an affront to the constitution. And that’s basically how Judge Tauro held in the two decisions. What’s spectacular is the particular language Tauro used in Gill (emphasis mine):

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled.  And this court can conceive  of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals.  To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning.  And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Sadly, I don’t have the time to go deeper in to the decisions, but Constitutional Law Prof Blog does a pretty good job. The big question now is whether the administration will appeal the ruling, and whether other district courts will bring similar cases, as Vermont, Connecticut and Iowa (et al?) are not affected by this ruling because they are not in the same federal court district.

I guess here is where I note that still-Attorney General Martha Coakley argued for Massachusetts. Wonder if this case will help progressives forgive her for such a terrible campaign last year.

No, John Roberts, judges are not umpires.

I had read about former Supreme Court Justice David Souter’s recent commencement address at Harvard, but it wasn’t til today that I read the entire speech, available here.  The address is an eloquent and persuasive response to (and take-down of) the theory of Constitutional “originalism” espoused vehemently by Justice Scalia, among others.

I’ve been thinking lately about liberals’ persistent inability to win the war of words, and conservatives’ great skill at manipulating language in their favor.  Scalia, for instance, has done an excellent job of making originalism sound like duh, the only possible legitimate method of engaging in Constitutional analysis.  See, when you’re an originalist, you “begin with the text,” then “give that text the meaning that it bore when it was adopted by the people.”  Sounds easy enough, right?  If you’re not an originalist, then obviously you must believe in a totally malleable Constitution, and in that case “You can give [the Constitution] whatever meaning you want and, when future necessity arises, you simply change the meaning.”  Sounds ridiculous!  Scalia must be right.  Oh, wait.  No, I don’t actually agree with that at all.  Hmm.

Of course, a big part of the problem is that when you see the world in black & white, it’s a lot easier to come up with catchy compelling slogans than when you recognize the nuances.  Which Justice Souter clearly does.  It’s harder to put a name to the alternate model he’s describing, or to fit it into soundbite form.  The whole address is really worth reading, but here’s a snapshot of why he rejects the originalist (in his words, “fair reading”) model–which he says has “only a tenuous connection to reality.”

The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.  Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.

And to indulge in another long quote, I also really liked Justice Souter’s take on the appeal of the “fair reading” model.  It’s hard living in the middle and trying to recognize multiple sides of arguments, and it’s so tempting to just take a hard line and go with it.

behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise.  And who has not felt that same hunger?  Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions?  I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.

SCOTUS lifts ban on animal snuff films

CC Photo by Flickr user laura padgett

The U.S. Supreme Court today handed down its ruling on U.S. v. Stevens, 08-769, and by an 8-1 decision, upheld the decision of the Third U.S. Circuit Court of Appeals in Philadelphia, nullifying a federal law banning the practice of filming cruelty against animals, citing First Amendment speech protection.

The case centered around Robert Stevens of Pittsville, Virginia, who ran a business and website selling videos of pit bull fights. He was caught in an F.B.I. sting and was consequently sentenced to three years in prison for violating a 1999 law banning the sale of videos portraying animal cruelty.

Apparently, this law was passed to ban stop a flood of “crush videos,” which cater to a fetish and shows women crushing small animals with their feet. Since the ban, “crush videos” have all but disappeared.