Tag Archives: links

Roper v. Simmons

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I’ve read Justice Scalia’s dissent to this week’s Supreme Court decision that outlawed the death penalty for 16- and 17-year olds. (In 1988, the Court outlawed the death penalty for anyone under 16.) As often happens to me when I read Supreme Court cases, I start off with a one opinion and then read the opposing view and think, “Well, actually, he’s got a point, too.” I’m particularly susceptible to Scalia’s opinions in this regard, because — despite his arrogance — he’s such an effective writer. If only he would use his powers for good.

Scalia rails against Justice Kennedy’s majority opinion for saying, in Scalia’s words, that “American law should conform to the laws of the rest of the world.” Kennedy cited the fact that a majority of nations have outlawed the death penalty for minors as support for outlawing it in the United States as well. (Cultural conservatives must be furious with Kennedy, a Reagan appointee; in addition to this case, he also wrote the majority opinion in Lawrence v. Texas, which not only outlawed anti-sodomy laws but cited the European Court of Human Rights in doing so.)

Except what Kennedy wrote is not what Scalia said he wrote. Kennedy did not write that “American law should conform to the laws of the rest of the world” but that “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” (My emphasis.)

Doesn’t it make sense to look outside our own nation when interpreting the Eighth Amendment? Any interpretation of the amendment turns on the phrase “cruel and unusual punishments.” One writer notes that the phrase “cruel and unusual punishment” first appeared in the English Bill of Rights of 1689. Shouldn’t it be okay to look outside our own nation in interpreting a phrase that we borrowed from another country? If “cruel and unusual punishment” no longer means in its country of origin what it used to mean, why should it be static in our own?

Scalia sarcastically writes that if we’re going to look at what Britain does, we should also follow Britain’s lead in “relaxing our double jeopardy prohibition” and “curtail[ing] our right to jury trial in criminal cases since, despite the jury system’s deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury.” But double jeopardy and trial-by-jury are procedural issues. We’re talking about killing people. The fact that Scalia can’t make the distinction speaks for itself.

Anyway, we’re not talking about letting world opinion control us here; that’s just the icing on the cake. In any event, we shouldn’t ignore the rest of the world completely. I’m sick and tired of hearing about American exceptionalism. Our country is not inherently better than any other country. To believe otherwise is just childish.

And you know what? Screw constitutional interpretation and legal opinions. I think the death penalty is wrong, and that’s that. Killing someone when you’ve already got that person behind bars is unjustifiable. Scalia can bloviate all he wants about the right of “the people” to make their own laws. But if it’s democracy versus human life, I think human life should win. Scalia, unfortunately and unsurprisingly, is blinded by his ideology.

DOMA Upheld

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DOMA has faced its first court test and has been found constitutional by a federal district judge in Florida. Here’s the opinion.

This is good, kind of, because any signal that courts will uphold DOMA will take even more pressure off the Senate to pass the FMA. (One of the reasons Bush is going to stop pushing for the FMA right now is that most of the Senate thinks DOMA makes the FMA unnecessary.) If a court strikes down DOMA, the fundamentalist Christian right is going to have a massive spazz attack and we’ll be that much closer to a constitutional ban on gay marriage across the entire nation.

Even so, as I mention in the post linked above, the U.S. Supreme Court would probably uphold DOMA. So again, we seem to have reached a tentative equilibrium right now under which same-sex marriage is a state-by-state issue. In a couple of decades things will get better, because young people support gay marriage in much greater numbers than their elders, and people will see that just because there’s gay marriage in some states, doesn’t mean the world falls apart.

No More FMA

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In addition to the most widely-quoted paragraph of Sunday’s Washington Post story (“President Bush said the public’s decision to reelect him was a ratification of his approach toward Iraq and that there was no reason to hold any administration officials accountable for mistakes or misjudgments in prewar planning or managing the violent aftermath”), there are also some interesting paragraphs about the Federal Marriage Amendment.

On the domestic front, Bush said he would not lobby the Senate to pass a constitutional amendment outlawing same-sex marriage.

While seeking reelection, Bush voiced strong support for such a ban, and many political analysts credit this position for inspiring record turnout among evangelical Christians, who are fighting same-sex marriage at every juncture. Groups such as the Family Research Council have made the marriage amendment their top priority for the next four years.

The president said there is no reason to press for the amendment because so many senators are convinced that the Defense of Marriage Act — which says states that outlaw same-sex unions do not have to recognize such marriages conducted outside their borders — is sufficient. “Senators have made it clear that so long as DOMA is deemed constitutional, nothing will happen. I’d take their admonition seriously. . . . Until that changes, nothing will happen in the Senate.”

Bush’s position is likely to infuriate some of his socially conservative supporters, but congressional officials say it will be impossible to secure the 67 votes needed to pass the amendment in the Senate.

Yesterday morning, the day after the interview, White House spokesman Scott McClellan called to say the president wished to clarify his position, saying Bush was “willing to spend political capital” but believes it will be virtually impossible to overcome Senate resistance until the courts render a verdict on DOMA.

That’s a relief. It’s not like the FMA could ever have gotten the votes of 67 senators anyway, but it’s good that Bush is retreating. (Though it’s what some would call flip-flopping.) DOMA’s not going anywhere for now — the U.S. Supreme Court would probably find it constitutional if given the chance — so it looks like this will remain a state-by-state issue. The next state to legalize gay marriage will probably be New Jersey, followed by California. And momentum is on our side.

This is good, good, good.

(Here’s Andrew Sullivan’s take.)

I Live Here, Too

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I’ve gotten over being depressed. Now I’m just pissed. I’m not moving to Canada; this is my country, too, and nobody gets to tell me to leave. Forty-nine percent of the country voted against W — and probably even more, but thanks to likely voter fraud, we can’t know for sure. And don’t hate the red states — there are plenty of blue-staters in that part of the country. (Except not so much in Nebraska, Kansas or Oklahoma.)

A 51-percent, 3.5-million popular-vote win seems shocking only because Bush lost the popular vote in 2000. In reality, W won the popular vote by the narrowest margins of any candidate since 1976. That’s not a mandate. That’s not some overwhelming voice of the people.

Two out of three Americans are not evangelical Christians. There are more of us than there are of them.

The gay marriage amendments? Read Evan Wolfson’s piece, to which I linked yesterday. Momentum is on our side. Young people are on our side, and they’re our country’s future. Remember — forty years ago, bans on interracial marriage were still legal.

As for the Supreme Court, Lawrence v. Texas was decided 6-3. If Rehnquist and O’Connor had retired and been replaced by archconservatives after Democratic filibusters were overcome, we still would have won Lawrence, 5-4. We must not relax, though. Justice Stevens, please hang on for a few more years. O’Connor, you too.

This is my fucking country, and I’ll be damned if I’m going to let some bigots take it away from me.

The Day After

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What I wrote in my head as I lay in bed at 4:00 this morning:

Half of me wants to scream, half of me wants to cry, and half of me is just numb. That doesn’t make mathematical sense, but it hardly matters in a country that no longer cares about reality.

What a disaster.

Bush won 51 percent of the popular vote, a higher percentage than Clinton ever got. No candidate had broken the 50-percent mark since 1988.

All 11 of the anti-gay-marriage amendments passed, even in Oregon.

Social conservatives Jim DeMint (North Carolina), Tom Coburn (Oklahoma), and John Thune (South Dakota) will now be in the Senate, and probably gay-baiting Mel Martinez (Florida) as well. The Senate will contain 54 Republicans.

Chief Justice Rehnquist is likely dying, so we will soon have Chief Justice Scalia. Moderate Justice O’Connor will probably retire, and liberal Justice Stevens is 84 years old.

The fabled youth vote never showed up. Young people didn’t vote in any greater numbers than last time. As Matt Haughey says, “Fucking stoned slackers. You can never depend on them for anything.”

(Update: Youth turnout actually went up.)

And Bush won the same percentage of gay voters as last time. Absolutely fucking astounding.

Sparky speaks my thoughts.

The Left Coaster writes excellently.

Andrew Sullivan writes about the impact on gays.

I feel reverse schadenfreude. Instead of taking pleasure in others’ pain, I’m taking pain in others’ pleasure. I felt this way in fifth grade, when one of my best friends won both the math and language-arts awards, leaving nothing for me. He was beaming and I was in tears.

I get the message. We’re not wanted here. Fine. I’m ready to secede. Let’s create the Greater Federation of Canada and Former Northeastern United States. It would look something like this. Who’s with me? West Coasters, you can join us too.

Part of me says: We got through the first four years, we can get through the next four.

The other part of me says: Supreme Court. Supreme Court. Supreme Court. That’s 25 years of hell right there.

Last night at around 6:30, before any polls had closed, I turned to Matt, breathed deeply, and said, “Let’s just sit here for a while and appreciate this moment, before any bad news starts coming in.” He looked at me like I was crazy.

What a disaster.

Rehnquist’s Cancer

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What Chief Justice Rehnquist’s cancer means for the election.

Dahlia Lithwick says that it’s doubtful Rehnquist would step down, but:

The possibility of Rehnquist stepping down also crystallizes how oversimplified the recent arguments about the power of Supreme Court appointments really are. Suddenly this “four-seats-to-fill-with-whatever-maniac-he-likes” rhetoric is shown to be at least somewhat lacking in nuance. Because if Rehnquist steps down, and President Bush is re-elected, the 5-4 balance on the current court would remain unchanged. In fact, Bush might arguably have a hard time confirming someone as conservative as Rehnquist in the current Senate climate—meaning that the net effect of a retirement could be a more moderate court, even with Bush in office.

This is why a Rehnquist retirement would mean so much were Kerry to be elected: With the appointment of a liberal or even a moderate replacement, the 5-4 balance on the court would tip dramatically. The possibility of a Roe reversal would virtually evaporate overnight, as would the likelihood of a sea-change in affirmative-action law. It’s a tough argument to make—smacking of that ugly word, “activism.” John Kerry can’t really mobilize voters by saying Bush would replace a staunch conservative with a staunch conservative. He could score a point by saying this is a rare and precious opportunity to replace a staunch conservative with a moderate. But my guess is he won’t. See “activist” above. And whether Kerry really wants to make a campaign issue out of an old man’s possibly terminal illness is doubtful.

Supreme Court Clerks Talk

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Some Supreme Court clerks from the 2000-2001 term, when Bush v. Gore was decided, have talked.

A friend of mine from college and law school clerked for Chief Justice Rehnquist that term. A few months after Bush v. Gore, I e-mailed my friend to ask how it felt to work on that case. He responded that while he couldn’t go into details, it was probably going to be the highlight of his legal career, an experience he’d probably never be able to top or forget. I’ve always envied him for it.

Justice Stevens

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Imagining America if George Bush Chose the Supreme Court

I’d guess that the justices most likely to retire in the next four years would be Chief Justice Rehnquist, Justice O’Connor, and perhaps Justice Stevens.

Here are the general leanings of the current court members:

conservative — Rehnquist, Scalia, Thomas

swing voters — O’Connor, Kennedy

liberal — Stevens, Souter, Ginsburg, Breyer

Clearly, the biggest blow to social liberals would be the loss of Justice Stevens. A Rehnquist retirement wouldn’t change the court that much; an O’Connor retirement would. But the loss of Justice Stevens would be the biggest deal. You don’t hear much about him. He’s currently the oldest justice, at age 84 (he was appointed by Ford in 1975). However, I’ve read that he’s as mentally sharp as ever, and as one of the most liberal of the liberals, I’m sure he wouldn’t want Bush to name his replacement. He’d die on the bench first. (Which I sure hope doesn’t happen.)

If Bush wins, I fervently hope that the Democrats retake the Senate in 2006, if they don’t do so this year.

Groups of Seven

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From one of the rounds of trivia last night: name all seven things for each of the following.

1) All seven deadly sins.
2) All seven states that border Kentucky.
3) All seven number-one songs from Michael Jackson’s “Thriller” album.
4) All seven original members of “Saturday Night Live.”
5)
6) All seven men currently on the U.S. Supreme Court.
7) All seven original members of the Justice League of America.
8) All seven characters who die in “Hamlet.” (thanks, Dan)
9) All seven “Police Academy” movie titles.
10) All seven books in the Chronicles of Narnia.

Mike has helped me remember some of these [note: so has Dan]. There’s one more category, but I can’t think of it right now.

California High Court Voids Gay Marriages

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So, the California Supreme Court has voided all the same-sex marriages that Mayor Gavin Newsom allowed in San Francisco last February. The court did not rule on the ultimate constitutionality of same-sex marriage (that issue is working its way through the lower courts and the state Supreme Court is not expected to address it before next year), but rather ruled on the issue of whether Mayor Newsom could legally ignore existing state law. The court unanimously found that he could not, and ruled 5-2 to void all of the nearly 4,000 same-sex marriages that had been performed.

I think this was the right decision. While Newsom’s actions were wonderfully inspiring, effective in humanizing the issue of same-sex marriage, and absolutely correct on principle, a mayor can’t just decide which state laws he will or won’t enforce. It’s not a city official’s job to interpret the state constitution.

That said, it was a heartwarming act of civil disobedience that put a human face (or rather, many human faces) on what many people see as an abstract issue. It’s one thing to think about gay marriage in theory, but — I hope — it’s another thing to have seen all those photos and footage of happy couples streaming out of San Francisco’s City Hall last February and March.

Here’s hoping all 4,000 of those couples will someday soon be able to get legally married. They, and we, deserve no less.

Seattle Marriage Decision

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I’ve just read this week’s court decision in Seattle ruling that gays have a right to marry. (Here’s a profile of the judge, William L. Dowling.) The decision is wonderfully written, very clear and readable. For some reason, though, the following excerpt, from the introduction, is one of my favorites:

Resolving their disagreement is, to be frank, a matter too big to be addressed to a lone individual and this author would naturally like nothing better than to stop at this point and, with a warm and sincere pat on the back, to send all parties off to the State Supreme Court or the State legislature or both.

I think this shows how difficult it must be for a judge to decide such a case today.

Supreme Court Cases

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This is the time of year that Supreme Court geeks love: the end of the term, when the biggest decisions of the year are announced.

There are two possible reasons why they save the big cases for the end: either those cases require the most time to decide and write, or the Justices want to get the heck out of Dodge before anyone can question them.

For me, nothing this year can compare to the anticipation and excitement I felt for Lawrence v. Texas last year (the one-year anniversary is this Saturday), but of this term’s remaining cases (the Cheney energy case decision was announced today), there are still some important ones: the terrorism/prisoner-detention cases. You can follow an ongoing dialogue between Dahlia Lithwick and Walter Dellinger as they discuss these. Lithwick states:

The photos accompanying these stories on the front pages will all be of alleged terrorists, even though these cases are really all about the president. …

I have this mental image that I cannot shake: The war on terror rolls inexorably along, crushing out basic rights and freedoms as the judges puff along on the sidelines, robes flapping ineffectually, trying to stop this machine that is the Pentagon, the Bush administration, and the Justice Department. We are now poised at the exact moment when the court really could stop that machine, or slow it down, or at least peek in a window. This is breathtaking when you think about it.

Dellinger points out the following Nixon quote: “Well, when the President does it, that means it is not illegal.”

Yikes.

Tune in Monday.

Gay Marriage

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A year ago, gay couples weren’t allowed to have sex in Texas. As of today, those same couples can move to Massachusetts and get married.

As they say in “Rent,” how do you measure a year?

Here’s the front page of today’s Boston Globe: “Free to Marry.” And here’s Howard Dean on gay marriage, also in today’s Globe.

You know, I’m realizing that gay Vermonters have basically been able to do for the last four years what gay Massachusetts residents are able to do as of today, except that it’s called something different. Both states now grant gay couples all the same rights as straight couples, and neither arrangement is recognized by the federal government. There was a lot of criticism a few months ago that calling such an arrangment a “civil union” as opposed to a “marriage” would have set up a scheme that was supposedly “separate but equal,” a concept that was deemed a failure 50 years ago today. But would it really be unequal?

In school segregation, separate was unequal, but that was because all-blacks schools didn’t receive the same funding and support as all-white schools and were therefore patently inferior. One benefit of integration was supposed to be that racist local governments would no longer be able to provide benefits to white students without also granting them to non-white students, because the students would all be mixed up in the same schools. In other words, it wasn’t the lack of white people per se that made black schools inferior, but rather the unequal funding and attention given to all-black schools. In fact, there are liberals today who disagree with Brown, who support the idea of separate schools for blacks as a way of instilling racial pride and identity. There are also those who think that Brown would have been better decided had the Supreme Court instead chosen to rigorously enforce “separate but equal,” which would have forced states either to create equal schools or just cry “Uncle” and integrate.

The point, anyway, is that it is not separateness itself that creates inequality, but rather the way that that separateness is dealt with. Vermont civil unions and Massachusetts gay marriages are completely the same, as I mentioned above. The only way they could be treated unequally is if the federal government someday recognizes all marriages, gay or straight, leaving Vermont “civilly-united” couples in the dust. But I think that if the federal government (whether of its own volition or under order of the U.S. Supreme Court) takes the big step of recognizing gay marriage, it will be such a seismic shift that there will be no logical or psychological reason not to recognize civil unions as well. After all, it’s just semantics. We’re talking about marriage as a civil institution (courts can’t force churches to do anything), so does it really matter whether a governmentally-recognized same-sex relationship is called a civil union or a civil marriage?

To some degree, yes. The real legal breakthrough might have occurred four years ago in Vermont, but today has great symbolic value. First, it just feels wonderful to think that there are now legally-married gay couples in the United States. Second, symbolism can lead to substance, because symbolism can affect the way people think about things. Calling legal gay relationships “marriage” forces people to think about equality and gay relationships, and it really puts the idea out there for people to see.

The causes of change are really murky. As one of my law professors argues in today’s Times, Brown did not lead to integrated schools; a shift in society’s views was first required. But a court decision can affect society’s views. Change occurs due to lots of “soft” factors. It wasn’t the Goodridge decision alone that led to legal gay marriage in Massachusetts, but rather Stonewall, the AIDS crisis, Rock Hudson, Clinton’s 1992 courting of the gay vote, Ellen DeGeneres, Matthew Shepard, and Lawrence v. Texas, as well as lots and lots of people coming out of the closet and thereby enlightening their families and friends, as well as lots of other things that are unmeasurable, that led to today.

So the word is not necessarily crucial, but it does matter. Civil unions are not inherently unequal, and marriage does not make everything equal. The word does not automatically make other people respect you or your relationship. But it’s one of those little things that, combined with other things, eventually creates change. You can’t control change — it’s like chaos theory. But you do what you can.

Therefore, congratulations, all you happily-married gay couples!

And save me some cake.

Marriage Jurisdiction

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There’s been a last-ditch attempt in the last few days by some members of the Massachusetts Legislature to challenge the Massachusetts high court’s same-sex marriage decision. The members of the legislature have made a motion to the Supreme Judicial Court to vacate its own ruling, claiming that the court does not have jurisdiction over marriage issues because the state constitution gives jurisidiction over marriage to the legislative and executive branches.

Here’s the legislators’ brief in support of the motion. Here’s GLAD’s reply brief in opposition. Apparently this issue has already come up a few times over the course of this litigation and has been dismissed each time. I can’t see the court denying its own jurisdiction over marriage, especially at this point. And since this is a state-law issue, it can’t be appealed to the U.S. Supreme Court, so the Supreme Judicial Court of Massachusetts will have the final word on this.

The Stranger

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Two things from this week’s The Stranger.

One, a call for caution:

Consider this possibility: A relentless push for gay marriage over the next eight months provokes a backlash from blue-collar, culturally conservative voters in key swing states like Ohio, many of whom might otherwise vote Democratic. The upshot: George Bush is reelected, resulting in a far-right Supreme Court–three or more new justices could be appointed over the next four years. That could ensure a judgment there that will set back the cause of equal rights for gays and lesbians for a generation.

Two, how the openly-gay Dan Savage got a perfectly legal marriage license:

So I asked if Amy and I could have one–even though I’m gay and live with my boyfriend, and Amy’s a lesbian and lives with her girlfriend. We emphasized to the clerk and her manager that Amy and I don’t live together, we don’t love each other, we don’t plan to have kids together, and we’re going to go on living and sleeping with our same-sex partners after we get married. So could we still get a marriage license?

“Sure,” the license-department manager said, “If you’ve got $54, you can have a marriage license.”

Insomniac

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Things That Went Through My Brain This Morning While Trying to Fall Back Asleep After Accidentally Waking Up at 5:30 AM

Maybe I should use the Amazon.com gift certificate my aunt gave me to buy Seasons 1-6 of “Friends” on DVD.

How many female U.S. senators are there right now? Let’s see: Patty Murray and Maria Cantwell (Washington), Barbara Boxer and Dianne Feinstein (California), Susan Collins and Olympia Snowe (Maine), Hillary Clinton, Barbara Mikulski, Elizabeth Dole, Mary Landrieu, Kay Bailey Hutchison, Blanche Lincoln, Debbie Stabenow. There’s 13. (Turns out I missed Lisa Murkowski of Alaska, so there are actually 14, up from 2 in 1992.)

I wonder how many current U.S. senators I can name altogether? I’ll keep track of them using fingermath. I wonder if anyone else knows fingermath? I wonder if fingermath is on the web. (I got up to 48 senators, then 51 or 52.)

Remember last year when Strom Thurmond died on the day Lawrence v. Texas was announced? That was so weird. Wow, he lived to be 100. My grandfather only lived to be 94. My grandma will be 91 in July if she can make it. She’s not doing so great. Old people always seem to deteriorate after their spouses die.

It’s too bad about San Francisco. The nation seems to be moving toward this compromise where every state will decide for itself. And civil unions seem to be the compromise point. Would civil unions be that bad? Eh, maybe not incredibly bad, as long as a state gives civil unions the exact same rights as marriages. With DOMA in the mix, gay marriages wouldn’t be able to get federal recognition anyway. And will the Supreme Court even want to deal with DOMA right now? With sodomy, there were only like 11 states that still had sodomy laws. But there are at least 38 states with laws or constitutions against gay marriage. The Supremes aren’t going to want to step into that mess. They need four votes to hear a case. Only three justices dissented in Lawrence. I wonder who the fourth would be.

It’s going to be sad when “Friends” ends. I can’t believe it’s been 10 years. Oh, and “Frasier” is ending, but nobody watches that anymore. I can’t believe Kelsey Grammer has been playing the same character since 1984. Remember in middle school one morning when my math teacher Mrs. Smith asked us what had happened on the season premiere of “Cheers” the night before? “She said yes,” we all said. “Who???” Mrs. Smith said. (Sam Malone had asked someone to marry him, but nobody had known whether he had asked Diane or this other woman.) Remember when TV used to have really good season finales with multiple cliffhangers? Remember on “Dallas” when Pam woke up and Bobby was in the shower, and meanwhile this other woman walked into this office in a building and it exploded? But then it turned out she really hadn’t because the whole previous season had been a dream? That sucked.

Wow, “The Simpsons” has been on forever. It started a few years before the Clinton administration began, and the Clinton administration ended a few years ago but “The Simpsons” is still on. Wow.

I wonder how long “NYPD Blue” has been on? I don’t watch it, so I don’t know. I should get up and check TV Tome. No, then I’ll never get to sleep.

It’s so light outside now. I wish it were darker so I wouldn’t have to cover my head with the blanket. That’s what mornings are like this time of year, when the days are getting longer but we haven’t hit Daylight Savings yet. It gets light too early. Three weeks until Daylight Savings! Yay! Wait, will we get an extra hour that Saturday night or will we get one fewer hour? Fall back, spring ahead… we’ll have one fewer hour. Darn.

Why do long-running TV series always get associated with the decade they started in rather than the decade they ended in? “Three’s Company” ended in 1983, “One Day at a Time” and “Happy Days” ended in 1984, and “The Jeffersons” ended in 1985, but they’re all associated with the ’70s. (Turns out “Three’s Company” actually ended in 1984.)

It’ll be time to get up in half an hour. Should I keep trying to fall asleep? Would it hurt or help at this point? Don’t I feel worse when I fall back asleep and then wake up a short time later? Maybe I’ll just lie here.

Why do I have so little money in my bank account right now despite having gotten a raise a few months ago?

Oh, I may as well get up now, just so I don’t have to listen to my alarm. Arrrgh.

<yawn>

Laura Bush Speaks

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While declining to express her own opinions about gay marriages, Mrs. Bush said, “It’s an issue that people want to talk about and not want the Massachusetts Supreme Court, or the mayor of San Francisco to make their choice for them. I know that’s what the president thinks. I think people ought to have that opportunity to debate it, to think about it, to see what the American people really want to do about the issue.”

People don’t want the Massachusetts Supreme Judicial Court to “make their choice for them”? We should wait and see what the American people “really want to do about the issue”? Why is it their business? The last time I checked, the Massachusetts Supreme Judicial Court was the final authority on the Massachusetts constitution. Hello? Constitutional rights apparently mean nothing. Stupid people piss me off.

Yeah, the San Francisco thing is technically illegal, but it’s the right decision on principle. It’s wonderful and inspiring and Gavin Newsom is my new personal hero.

Sigh. Laura Bush always seemed like such a nice woman.

Constitutional Amendments

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Amen, Chris. Someone asked me this same question about the proposed federal marriage amendment recently, and I had to respond, no, a constitutional amendment cannot be found unconstitutional, because it is by definition constitutional. I can sort of understand the confusion, though; after all, as a legal document, the Constitution should be internally consistent, right? And it could be argued that a federal marriage amendment would clash with the Equal Protection Clause of the Fourteenth Amendment (at least under the modern interpretation of that clause). What better body to resolve such internal inconsistencies than the U.S. Supreme Court?

But it doesn’t work that way. Or at least it hasn’t. As stated 200 years ago in Marbury v. Madison, the Supreme Court’s role is to judge whether a state or federal law violates the Constitution. A constitutional amendment is higher than an ordinary law. The entire point of it is that it becomes part of the Constitution. If a federal marriage amendment gets ratified, any state or federal law that allows gay marriage will be as unconstitutional as a law that violates free speech or the free exercise of religion.

Of course, if the entire Supreme Court wanted to, it could probably create an entirely new form of judicial review that would allow it to declare part of the Constitution unconstitutional. After all, Marbury v. Madison itself was written by Chief Justice John Marshall. We’re not talking about God’s laws here; we’re talking about people.

There’s only one example I can think of in which the Supreme Court has effectively invalidated part of the Constitution: the Slaughterhouse Cases of 1873, in which the Supreme Court basically read the Fourteenth Amendment’s Privileges and Immunities Clause out of the Constitution five years after the amendment had been ratified. (I don’t know too much about the Slaughterhouse Cases, but I know the result.)

That said, although a federal marriage amendment is a scary idea, I don’t think it has a good chance of being ratified. For a constitutional amendment to be ratified, first two-thirds of the Senate and two-thirds of the House must pass it; in other words, the Republicans need a bunch of Democrats on their side. Second, it must be passed by both legislatures in three-fourths of the states. That’s 38 states (since there’s no such thing as 37.5 states). In other words, if one legislature in each of 13 states votes against it or doesn’t vote on it, it doesn’t get ratified. Amendments are notoriously hard to pass; that’s why there’s no anti-flag-burning amendment today. And look at the story of the Equal Rights Amendment.

This piece has a good explanation of why a federal marriage amendment probably won’t get ratified. (The writer opposes gay marriage, though.) The amendment process was designed to be difficult; constitutional change is not supposed to be subject to the passions of the moment. It’s supposed to require broad consensus among the American people. And fifty-five percent is not a consensus. Granted, given the speed at which information travels these days, anything can happen. And how many unthinkable things have happened in the last few years? A presidential impeachment; a tied presidential election; 9/11.

Nothing is impossible anymore.