Is Rep. Aaron Schock GAY??

I try very hard not to do any tabloid style outing of public officials, but this one caught my attention.  So I figured I would consolidate all the rumors and see where I ended up.

BACKGROUND

For those who don't know Aaron Schock is the incredibly young Congressman from Illinois, who was elected at the tender age of 27.  He is also famously attractive.  Unfortunately, he is also conservative.  He didn't ride the Tea Party wave into Congress and I've seen no evidence that his is off-the-wall-nuts like they are, but he is none the less conservative.

His appearances in the mainstream media are generally without fanfare, though he does have a tendency to go up against the brilliant Rachel Maddow.  As you might imagine, the result is that Rachel uses him as a punching bag for the entirety of the 60 minutes of the show.


PHOTOS
People have been making a big deal out of two different things.  First, there are the pictures.  Rep. Schock is a VERY attractive gentleman.  If you are not convinced that a congressman can be that attractive check out the following pictures.

First there was the famous swimsuit pictures with Mr. Schock posing shirtless with a busty lady friend behind him.  Many people who are convinced that Mr. Schock is gay see this picture as a crass attempt to show off his straightness.  It could also be that he really is straight.

Second is the infamous blue belt picture.  In this picture we see Mr. Schock having a grand ol' time at a party sporting a plaid shift tucked into a white pants, held up by a vibrant blue belt.  To be fair, no self respecting straight man would wear something like that.  Most gay men wouldn't even be caught in that. His staff claims he "burned the belt," but I'm not sure I believe it.  Realistically, I see there being two explanations for the belt.  (1) he really is gay and was so clueless and stupid as to wear something gay and nearly out himself or (2) he is straight and either let someone else dress him or carelessly grabbed something flamboyant.  For someone perpetually battling gay rumors I find it hard to believe that he would consciously wear something that would fan the flames.  I'm going with the "he wasn't thinking" option on this one.

Third is the, now iconic, photo of his abs on the cover of MensHealth.  This is where my favorite stereotype comes into play.  The logic goes, since he is attractive and has a nice body, he must be gay.  That's really it.  Gay people have convinced themselves that any Republican who keeps himself in shape and works out must be gay.  Whether or not this turns out to be true, it's a little silly, don't you think?

RUMORS
Aside from the photos.  There are the "hook-up" rumors.  One source, who worked for GOProud for a short time, told me that Mr. Schock has hooked up with one of the founders of the organization, as well as some influential Republican donors.  I checked out the founders online and I'm sorry to say that I'm not convinced.  The founders are not exactly in Mr. Schock's league.  If you were going to hook up with anyone it should certainly be people like GOProud (who wont out you because they have a vested interest in your success), but that doesn't necessarily mean it happened.

Then there are the "live in partner" rumors.  This partner has reportedly been seen at various functions around the city.  This would be pretty damning evidence except for the fact that there are no pictures of this mysterious person.  For all the people who claim its a big open secret, I haven't been able to find a single person smart enough to snap a picture.  So either it's a rumor or all the people who witnessed this earth-shattering, possibly scandalous event were just too stupid to snap a pic.  Here is the only potential evidence I could find to corroborate this rumor.  Again, I would be shocked that he would be so stupid as to have his partner hold the bible at his swearing in, if he is in fact in the closet.  So once again, I'm not convinced.  If it were that obvious, someone would have nabbed a picture.

Finally there is the "he's a homophobe, therefore he must be a homo" rumors.  They are as stupid as they sound.  Statistically speaking, yes, closet cases are more homophobic than your average conservative, but I don't see any reason to think that Schock is all that hateful.  He is a movement conservative, anti-abortion and anti-gay marriage, but he hasn't exactly gone out there and started evangelizing the evils of homosexuality.  If anything, he seems to have taken the "are you gay?" questions in a bemused but tolerant manner.

MY THOUGHTS
Pretty simple on this one.  While lots of people want to believe that Schock is the DC version of Tom Cruise, I just don't see it.  The media snapped a few incredibly flattering pictures and the gays are screaming "he's one of us."  From there rumors about the men he's slept with and the men he keeps have abounded, without the slightest bit of corroborating evidence.

Until I get something more concrete, I think Rep. Schock is just a hot frat boy with a pretty face and obsession with his body.

Common Sense

Layshock v. Hermitage School District (3d Cir 2011)

This is a case I found last week, and I thought it would be an interesting addition to any Education Law and First Amendment case library.  The full opinion is available here.

BACKGROUND

Justin Layshock was a student at Hickory High School in the Hermitage School District in Pennsylvania (he has since graduated and gone on to an excellent school in NYC).  While at his grandmother's house in early december he created a fake (parody) MySpace profile of his principle, which sought to make fun of his principle's large stature.  4 other similar profiles were eventually discovered as well.  The profiles were accessed occasionally on school grounds by other students.  The school, having discovered the profiles, but unaware of who the identity of the authors, attempted to block access to the pages from the school.  They also computer programming classes, and limited student computer/Internet use to computer labs, which could be more easily monitored.  On Dec 21, Justin was called to a meeting with the superintendent and co-principal (not the principal in question) where he admitted to creating the profile.  He then apologized in person and in writing to the Principal.  On Jan 3, the school district sent a letter stating that they would be taking disciplinary action against him for violations of the Discipline Code.  The district found him guilty and imposed a 10-day suspension, placed him in an Alternative Education Program (traditionally for students who have behavior/attendance problems), banned him from extra-curricular activities, and refused to allow him to attend graduation.  He was also informed that the District was considering expulsion.  (none of the authors of the other "parody" profiles were discovered or punished)

PROCEDURE

Justin's parents sued the School District claiming the district (1) violated of Justin's First Amendment right to free speech, (2) maintained unconstitutionally broad policies, and (3) violated the parents' Fourteenth Amendment rights to "raise, nurture, discipline, and educate" their child.  The U.S. District Court for the Western District of Pennsylvania granted summary judgement in favor of Layshock on the First Amendment claim and in favor of the School District on the remaining claims.  Both parties appealed their loses.  A unanimous panel of the U.S Court of Appeals for the Third Circuit affirmed the district court.  This time the School District appealed for en banc review, but the family did not.  Therefore, the en banc panel reviews only the issue of the first amendment.

ISSUE
Can the School District punish a student for non-disruptive speech made outside of school via the Internet?

HOLDING
No, speech, which does not have a disruptive effect, made outside of school via the Internet cannot be reached for punishment by the School District.

RATIONALE
The court's analysis began with Tinker, where the Supreme Court ruled that Constitutional Protections do not end at the "schoolhouse gate."  The court went on to Fraser, where the SC upheld the suspension of a student who made an offensive speech in school but distinguished Cohen, where an adult man in a court house was convicted of disorderly conduct for wearing an offensive jacket.  The court interpreted these cases to mean that speech can be curtailed within the "schoolhouse," and further supported that analysis with Kuhlemeier, where the court upheld the deletion of student article's on abortion from a school-sponsored newspaper.  The court also used Morse, where the Surpeme Court upheld the removal of a banner stating "Bong Hit for Jesus"on the grounds that schools had an interest in prohibiting student drug use.

Next, the court addressed the issue of whether off-campus speech might be reached under the Tinker line of cases addressed above.  As a general matter the court determined that they may not, and rested their analysis on Thomas v. Board, where a satirical student newspaper was created with occasional use of campus resources, but distributed entirely off campus.  The Second Circuit ruled that the school could not reach this speech.

Finally, the court addressed the issue of whether off-campus speech might be reached when it is accessible on-campus (such as Internet speech).  The court recognized that there were instances where the answer would be yes, but that they were limited to instances where an individual had caused a "disruption" on campus.  The examples used by the court were instances where a student had made a threat against a teacher or administrator.  In J.S. v. Bethlehem the court upheld the discipline of a student who made a website threatening his teacher, which caused the teacher to take medical leave.  In Wisniewski v. Board, the court upheld the discipline of a student who created an image of his teacher being shot and the words "Kill Mr. WanderMolen" underneath it.  In Doninger v. Niehoff, the court upheld the discipline of a student who called administrators "douchebags" on her blog and encouraged other students to call the office and "piss [them] off more."

The Court determined that none of the factors present in any of the aforementioned cases were present in the Layshock Case, and therefore, the principal and school board could not reach out and punish the student for his online speech.

CONCURRENCE
Two judges wrote separately to reiterate that they believed that Tinker could be applied outside of the "schoolhouse gate."  They recognized that the opinion of the court had not foreclosed this possibility, but wanted to make sure that it was restated for emphasis.

MY THOUGHTS
(1) The conduct WAS disruptive
So, wait a minute.  It sounds like the Court here is saying that "potentially disruptive"only applies to cases where a student makes a threat of physical harm.  Look at the facts again.  The internet profiles had the effect of causing classes to be canceled and curtailing the internet/computer use of other students.  That strikes me as a disruption!  Not to mention the time and energy the administration put into dealing with this issue, as well as the disruptive effects on the principal himself, who was clearly upset by this "speech."  To say this was passive and non-disruptive is disingenuous.  I'm not sure I think this fact should influence the outcome, because I believe strongly in a libertarian view of the first amendment, but lets not pretend that this kid's stupid, immature, and brazenly juvenile actions are not disruptive because they clearly were quite disruptive.

(2) Lesson: If you do something wrong, DON'T admit it
The school district was probably thinking "hey, this kid admitted doing this, so let's make an example of him."  The problem is that punishments like this are not going to dissuade students from doing stupid things in the future.  What it is going to do is ensure that none of them ever come forward, apologize, and learn an important life lesson.  The only sure fire way to be punished in the school district then, is to act like an adult and admit you did something wrong.  That's not the kind of lesson that we should be teaching children.  Sure punish the kid, but throwing the kitchen sink at him is counter-productive.

AFTERWARD

Justin graduated from St. John's University in New York with a BA in Economics this year (2011).  The school has turned much of their ire on the ACLU, who has been supporting Justin.  The Principal in question is no longer at Hickory, and the co-principal, who justin met with prior to being disciplined, has be promoted to that position.

Godspeed Justin, and congrats on having your name on a major First Amendment decision!

Common Sense

Wal-Mart Stores v. Dukes (2011)

Today (June 20, 2011) the Court released the much anticipated decision in Wal-Mart Stores v. Dukes.  The case presents, what would have been, the largest class action lawsuit in our country's history with more than 1.6 million people included in the class.  Unfortunately, the court threw out the certification on procedural grounds.  The plaintiffs may still bring their individual cases, or may attempt to certify smaller classes.  Here's what you need to know:


BACKGROUND

Respondents (Plaintiffs in the original case), current and former employees, claim that they were discriminated against by Wal-Mart Stores, Inc.  They claim that they were paid less than their male counterparts in the same positions and that they were denied promotion/raises because of gender bias.  Wal-Mart has a policy of allowing their managers almost complete discretion in hiring and promotion.  The only requirements that Wal-Mart has for promotion to a management training position is "above-average performance evaluations, one year's tenure at their current position, and a willingness to relocate."  Respondents claim that this discretion was applied in a gender biased manner, and that bias was pervasive in the corporate culture of Wal-Mart.  They DO NOT claim that Wal-Mart has an official policy of discrimination (Wal-Mart has an expressed policy of gender neutrality and claims to punish discrimination when applied in hiring/promotion), rather they claim that the application of discretion leads to a "disparate impact" (a.k.a. unequal treatment).

In support of their claim the three named parties put forward their own stories.  Respondent, Dukes, claims that she was brought up on disciplinary charges in retaliation for invoking internal complaint procedures (she was demoted from support management to "greeter").  Respondent, Kwapnoski, claims her manager "told her to 'doll up,' wear some makeup, and dress a little better."  Respondent, Arana, requested management training on a number of occasions, but was brushed off.  After initiating internal procedures, she was told to apply to the district manager if she thought her manager was being unfair.  She chose not to.  They also put forward a study which found that disparities in hiring, promotion, and pay could be explained only be gender discrimination.


PROCEDURAL HISTORY
The U.S. District Court for the Northern District of California certified a class of all current and former female employees of Wal-Mart Stores, Inc.  The U.S. Court of Appeals for the Ninth Circuit affirmed (but slightly limited) the class certification.  Defendent, Wal-Mart, appealed for certiorari to the U.S. Supreme Court, and the court granted the appeal in 2010.


APPLICABLE LAW
Rule 23 (Class Actions)


Rule 23 creates four types of class action.  The types of class action relevant to this case are 23(b)(2) and 23(b)(3).
23(b)(2) classes include any class that is seeking injunctive relief (such as an injunction, declaratory relief, specific performance, etc.).
23(b)(3) classes are those where the class is seeking monetary damages.


In order to be certified as a class you have to meet the four criteria of 23(a).
(1) The class must be so numerous as to make joinder impractical.
(2) he claims must present a common question of law and fact.
(3) The claims of the representatives must be typical of the claims of the entire class.
(4) The representatives must adequately represent the interests of the entire class.
There criteria are referred to by the Court as "numerosity, commonality, typicality, and adequate representation."


Rule 23(b)(3) is more stringently policed by the court, so it requires two additional criteria.
(1) The common claim must "predominate" over all other claims.
(2) A Class Action must be the "superior" form of adjudication (i.e. it must be better than adjudicating each claim individually).


ISSUE
The court answered two questions in this case (Parts II and III of the opinion)
(Part II) Has the certification met the criteria of 23(a)?
(Part III) Can claims for monetary damages by certified under 23(b)(2) when they are attached to a claim for injunctive relief?


HOLDING
Part II (5-4): No, the class certification was inappropriate because the class failed the "commonality" element of Rule 23(a).
Part III (Unanimous): No, claims for damages may NOT be certified under 23(b)(2) unless they are "incidental" to the claim for injunctive relief.


OPINION (Scalia, joined by Roberts, Alito, Thomas, and Kennedy)

Justice Scalia and the Conservative block reason that the claims of the respondents are too dissimilar to be considered "common."  The court cautions that "demonstrating the invalidity of one manager's use of discretion will do nothing to demonstrate the invalidity of another's."  As such Scalia finds that the element of commonality is not met because it would be impossible to prove that the discretion of the representatives' managers was common to the discretion applied across the class.


In the second holding (Part III), the court unanimously holds that Rule 23(b)(2) cannot be used to certify claims for monetary damages unless they are incidental to the injunctive relief requested.  In this case the court found that the claims for damages were related to, but distinct from the request for injunctive relief. granting an injunction would not automatically lead to monetary damages, thus the monetary damages were sufficiently distinct to be certified separately under the more stringent Rule 23(b)(3).  The court therefore, held that those claims must be certified under 23(b)(3) if at all.


DISSENT (Ginsburg, joined by Breyer, Sotomayor, and Kegan)

Justice Ginsburg and the liberal block of the court agreed that monetary damages should not be certified under 23(b)(2) and concurred with Part III.  However, the liberal block took issue with the courts expansion of the "commonality" requirement.  Ginsburg claimed that the court's emphasis on how the claims of the class members were dissimilar lead to a "dissimilarity test" rather than a commonality test.  She claims that the commonality requirement was meant to join cases that have similarities.  This change, she claims, would drastically narrow certifications since any differences would now be grounds for denial of certification.


Ginsburg also claimed that the use of dissimilarity was an attempt by the court to integrate the Rule 23(b)(3) requirements into the 23(a) requirements, thus making it more difficult to certify all classes, not just those for monetary damages.  This, Ginsburg reasoned, was inappropriate.


CONCLUDING THOUGHTS
I know that most non-legally-trained individuals see this as a case of discrimination, but it's not.  The issue that came before the court was all about procedure, even though the overarching case was about discrimination.  Personally, I like the fact that the court is limiting class action certifications.  However, the court fails to recognize that there is a difference between class actions for injunction and those for money.  I find that classes for injunction are usually less dangerous than those for money.  Consider the difference between telling a company "no, you may not do X" and "you now have to pay $X billions of dollars."  The former generally won't be very dangerous to the company, while the latter could be devastating.  Thus, I agree with the Dissent, in so far as I think that importing additional requirements for injunction classes is probably unnecessary and detrimental.  It provides unnecessary protections for businesses whose practices may be discriminatory, even when the plaintiff is not seeking monetary relief.  We don't need to protect company policies from injunctions in the same stringent manner as we protect them from potentially devastating monetary damages.


Common Sense

ACS Convention: The Hon. Eric Holder

The Keynote Address from the 2011 10th Anniversary ACS Convention in Washington D.C.



I have the privilege of seeing this speech live and it is well worth the 15 minute runtime.

I don't have a lot of time to write, so I'll update this later tonight to talk about what he says.

Common Sense

Presidential Power: The War Powers Act and Obama's Military Action in Libya

Republicans are making a big deal about Obama's "violation" of the War Powers Act (WPA, a.k.a. War Powers Resolution, because it's not actually a law it's a joint "opinion" of Congress).  I figured it was worth a post in order to clear things up and also point out that the President's position isn't a very productive one.


Here are the questions we have to answer:
(1) Does President Obama need Congressional approval?
(2) If he does, has he satisfied his duty to Congress with what he has provided already?


BACKGROUND

The WPA is the result of nearly 200 years of confusion surrounding which branch of government really has the power to take the country to war.  Following the Vietnam War and all the madness that came with it, Congress sought to clarify who had the power to declare war.  In 1973, they passed the WPA.


The WPA States:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. (hmm... where does Libya fall within this framework?  emergency?)

The president shall submit within 48 hours [of the commencement of military action] to the Speaker of the House of 

Representatives and to the President pro tempore of the Senate a report, in writing... [addressing] circumstances... authority... and scope...

Now here's the important part for whether the President has violated the Act:

Within sixty calendar days after a report is submitted, the President shall terminate any use of United States Armed Forces, unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity...

LIBYA TIMELINE

February 15, 2011.  Massive protests break out in Benghazi, Libya.  This was the beginning of the Civil War now engulfing the entire country.


March 17, 2011.  The U.N. authorizes military action against Libya.


March 19, 2011.  The U.S. begins bombing Libya.  The President authorized the action without approval from Congress.


March 24, 2011.  Critics immediately surface to challenge the President.  Most notably, and perhaps most ironically, the Republican Speaker of the House, Rep. Boehner challenged the President complaining about a "lack of clarity."


March 28, 2011.  The President addresses the nation, informing the world of his reasons for launching missile strikes against libya.  In essence, he argues that sometimes we should intervene to protect people when their leaders attempt to massacre them.  He kept it vague, so there isn't much in there to get angry about.  The President also claims that he informed Congress within the 48 hour window and specifically addresses the issue of the WPA.

June 14, 2011. Speaker Boehner reignites the controversy by warning Obama that he must act by Sunday or risk being in violation of the WPA.  The Speaker demands that Obama come to Congress, explain his reasoning for the military actions, and seek their approval of the military efforts.


June 15, 2011.  The White House responds to Boehner's challenge by digging in their heels and claiming that they don't need Congressional approval for this mission.


June 16, 2011. A group of Congressmen from both parties sued the President claiming that his actions in Libya are illegal (including Denis Kucinich, who has been complaining about this from the start, and Ron Paul, everyone's favorite libertarian perma-candidate for President).


(1) DOES THE PRESIDENT NEED CONGRESSIONAL APPROVAL?
This is THE big question in almost every military action.  The Constitution is virtually silent on the matter other than giving to Congress the power to "declare war" and the President the powers as "commander-in-chief."  When the Constitution was first ratified these two phrases may have meant something completely different.  For example, consider the fact that we did not have a standing Military, and it would have been impossible for the President to declare war without Congress first raising an army.  On the other hand, at the Constitutional Convention, the words were actually changed from "making" to "declaring" specifically because the delegates thought it important to recognize the President's role in War making.


We also have to take into account the fact that the President has effectively declared war (or at least entered the country into military hostilities) more than 125 times in the past 200 years.  In the famous concurring opinions of Youngstown Steel, Justices Frankfurter and Jackson both talked about the concept of prolonged Congressional inaction be essentially the same as acquiescence.  However, it was the dissent by Justice Vinson which proved particularly prophetic.  Vinson argued that Congress has no power to check Presidential actions in an area where he had Constitutional authority.  Vinson believed that War making was one of these areas.  Vinson's dissent would become political reality during the Nixon Presidency.  The concept of an all power President eventually became known as Unitary Executive Theory in conservative circles, or the Imperial Presidency in liberal circles.


What is particularly ironic about this situation the Republicans who are now crowing about unchecked executive power were all too eager to hand over that authority to President Bush just 10 short years ago. What changed?  The political party of the President?  Is the Libya action different from Iraq?  Probably a little bit of both.  Republicans are, perhaps, too eager to score a hit on Obama even when it reveals a latent hypocrisy in their own position.  At the same time, the mission in Libya strikes different cords than the mission in Iraq.  The Libya mission seems more like a "humanitarian" mission, which has never been enough reason for the right -wing war-hawks to dust off the nuclear launch codes.  So, really there may be a little hypocrisy here, but it's also an issue of different beliefs regarding when we should use our military (humanitarian interests vs. economic/military interests).


Getting back to the issue of the WPA, it appears that the President does, indeed, need Congressional approval.  This is assuming that the WPA is even constitutional, which is another contentious legal issue.  Unfortunately, it's unlikely that the issue will ever get to the SC and even if it did, the Court has been perfectly happy letting the President and Congress fight it out when it comes to issues of war making.


(2) HAS THE PRESIDENT SATISFIED HIS DUTY?
Honestly, I think that he has.  Again assuming the WPA is constitutional, then he has to submit a report (which he said he did), and outline the circumstances, authority, and scope of the mission (which he certainly did in his address to the nation).  At that point, the issue goes to Congress to decide whether to act or not.


So, in essence, it appears that Boehner is just being a petualnt child trying to get Obama to return so the Speaker can lord over him while he grovels, begging for Congressional approval.  That's not required by the WPA.  As far as I'm concerned the President has met his duty, and certainly satisfied the spirit of the WPA.  The fact that Congress has not acted yet to respond is their own fault and perhaps if the Republicans were not so busy pushing their pet agenda, they would have time to act on things that actually matter.


In short, YES the President needs to seek Congressional Approval, but it appears that he has already done so and should NOT be required to come crawling to Congress every time the Speaker wants to score a cheap political point.


SIDE NOTES

There are a couple of issues nagging at the corners of this who debate.  First, is the issue of whether we should be in Libya from a policy standpoint.  I fully agree with the President when it comes to protecting the rebels from being massacred (although there has been some suggestion that they are, in fact, being supported by Al Queda groups, which would be troubling).  However, I think that the mission has gone awry in the past couple months.  For example, no where in either the President's speech nor the U.N. resolution was authority given to assassinate Gaddafi.  It is for the Libyan people, NOT the international community to decide how to overthrow their leader.  It would be absolutely illegal and immoral for Gaddafi to be assassinated, no matter how bad of a man he may be.


The second issue worth discussing is the idea that the type of mission effects whether Congressional Approval is required.  I'm not sure I agree with that.  The Constitution certainly doesn't differentiate, and if we took the President's argument here in conjunction with the Constitutional language literally, then the President could get away with anything just by not calling it a "war."  That hardly seems to be in the spirit of what was intended.  The WPA appears to be even more broad, including all military actions (or at least most that we could imagine).  If the WPA doesn't cover military strikes against another country, then it would be pretty worthless.  I don't know much about this issue in particular, but my guess is that the President's actions should fall under the WPA if we are being honest about the intent of the document.  Therefore, the President's claims that he is free and clear make me wonder what happened to the guy who railed against Bush II for doing the exact same thing...


Common Sense

Nearing The End of Proposition 8 (CA)

In an eagerly anticipated order (hovering just on the outskirts of the Prop 8 case) the new Chief Judge of the District Court of Northern California shot down claims by Prop 8 supporters that the gay judge in a committed relationship, who struck down Prop 8 last year, should have recused himself from ruling on a gay marriage case.


A few weeks ago I was attending a memorial day party where there were a number of older gay men.  While they discussed the issue of Prop 8, they truly knew nothing about the case.  I did not correct them, but it made it abundantly clear that even supporters are tragically misinformed on the issue and what legal battles have been raging.  Hopefully this blog post will clear up the issue for everyone who reads it.


BACKGROUND
The battle for same -sex marriage rights began in the mid 1990s with DOMA.  For the most part the Republicans used the issue to their political advantage, accusing liberals (who probably hadn't even thought of the idea) of conspiring to legalize gay marriages.  It was a classic Gingrich era straw man and it worked perfectly.  Bush II used it in both his 2000 and 2004 campaigns.  Everything was going splendidly until February 2004, where our story begins.

In February 2004, Mayor Gavin Newsom, after long planning to take a stand for gays and lesbians, shocked the country by issuing marriage licenses to gay/lesbian couples in San Francisco.  The stunt may not have lasted long (The CA Supreme Court halted the mayors little coup on March 12, 2004), but it hurled CA into the national conversation.  Both sides committed themselves to settling the issue once and for all in CA, long a liberal stronghold.  Either CA was going to continue to be the liberal model for the country, or it was going to prove that same-sex marriage couldn't even win in the most liberal of states.

Four years later, in May 2008, the liberal block scored what we all thought was a knock out punch to same-sex marriage opponents.  In In re Marriage Cases, the CA Supreme Court declared that the CA version of DOMA was incompatible with the State Constitution and struck down the law.  LGBT Advocates cheered the decision as a landmark case, and indeed it was.  New editions of major casebooks were updated to include the decision and it was immediately compared to Lawrence v. Texas (striking down anti-sodomy laws) and Loving v. Virginia (striking down anti-misogyny laws).  Unfortunately, as always seems to be the case, supporters underestimated their opponents.  The decision galvanized an effort to get the issue on the ballot.


PROPOSITION 8

Polls before the election showed Prop 8 losing in decisive fashion, but on November 4, 2008 Proposition 8 passed in California and changed the words of the State Constitution to define marriage as between "one man and one woman."  Following the shock and sting of such a humiliating defeat, marriage advocates challenged the proposition in State Court.  The CA Supreme Court rejected the challenge, but refused to invalidate the marriage licenses granted prior to November.


Marriage proponents then took their case to the Federal Courts, arguing that the State Constitution was in violation of the 14th Amendment of the Federal Constitution (the only law higher than a State Constitution).  The case made national headlines when the (heavyweight?) lawyers from Bush v. Gore joined forces to take the case through the federal system.  The Perry v. Schwarzenegger case was heard by then Chief Judge Vaughn Walker.  In his decision he found that the law violated both the Due Process and Equal Protection clauses of the 14th Amendment.  What was particularly interesting is that he based in analysis on rational basis review (not the more stringent "strict scrutiny" review).  In the District Court's view, there wasn't even a rational basis to support the law.


TWO TRACKS
This is where the issue gets a little more complicated than the average observer might want to figure out, so I'll do my best to make it simple.


1. Motion to Vacate

Soon after the decision it came to light that Judge Walker is, himself, a gay man with a long-term partner.  Opponents immediately jumped on this revelation and demanded that the decision be vacated because of the judges failure to disclose.  Since that isn't a very strong legal argument they switch course and started pushing the argument that Judge Walker had a vested interest in the outcome of the case, since overturning Prop 8 would allow him to marry his partner.  This, they argue, means that he should not have been able to hear the case at all, and the decision should, therefore, be void.


Yesterday (June 14, 2011), the new Chief Judge James Ware DENIED the motion to vacate.  The judge had choice words for Prop 8 supporters:

The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
(Quote is Compliments of the Rachel Maddow Show Blog)


And so this track has come to an end, and the Walker decision remains binding and good law.  Prop 8 is no longer valid in the Northern District of California.


2. Appeal

This is not to say the issue is dead and buried.  Appeal is almost always an option.  However, there is a wrinkle here also, that is working in favor of LGBT advocate.  The decision of whether to appeal falls to the government through the Governor and his Attorney General, Jerry Brown (now Governor).  In a shocking turn around, the government of CA decided NOT to appeal the District Court's ruling.  This had the effect of officially ending the litigation, and allowing the District Court decision to stand.


The wrinkle is that Prop 8 supporters, then filed an appeal in the 9th Circuit (the Federal Court above the Northern District of CA) without the government.  The 9th Circuit heard arguments on the case, but then bumped the case BACK to the California Supreme Court seeking guidance on whether the Prop 8 supporters can actually appeal instead of their government (this issue of whether a person can sue is called "standing").  The 9th Circuit was curious whether CA state law allowed citizens to sue to enforce state laws.  Surprisingly, not every state allows this practice, instead saying only the government itself has standing to enforce laws.  The Supreme Court agreed to take the case from the 9th Circuit, but a hearing isn't expected until September 2011, and a decision probably won't come until December 2011.


Even if the case goes forward, the Appeals Panel is expected to uphold Walker's decision.  The panel consists of one die-hard liberal, one liberal, and one conservative.  We can assume the decision will certainly be 2-1, and almost certainly upholding the Walker decision.


A SUPREME DECISION?
Unlikely.  There are a number of reasons why the Supreme Court probably will NOT take an appeal from the 9th Circuit's decision.  First of all, the 9th will be the only Circuit to deal with this issue.  Other Circuits have addressed the issue of Marriage, but this is the only instance in which a Constitutional Amendment is being challenged.  In other instances it was state or federal law that was being challenged.   Without a "circuit split" on the issue, it is not likely that the Supreme Court will take up the issue.


The Supreme Court justices are also unlikely to tackle the issue because of Justice Kennedy's notorious unpredictability on issues like this (his was a surprise defection from the conservative block in the Lawrence decision).  Neither the 4 conservatives nor the 4 liberals are likely to rely on him when it comes to this issue so there probably isn't much of a push to grant cert on this issue.


There is also the issue that Justices are VERY hesitent these days to take up highly contentious social issues because of what happened following Roe v. Wade.  Even justice Ginsburg, notorious feminist as she is, has said that cases like Roe should not be taken by the court.  It just causes to many issues when the court tries to settle matters like this, and the court's legitimacy suffers in the process.

So there you have it.  We are nearing the end of the Prop 8 battle and things are looking pretty good.  We have to suffer through another 6 months of stalling because of the standing issue, but after that we should see a final decision from the 9th pretty quickly.  The result is likely to be in our favor, which would set Federal policy for the entire West Coast and leaving many other Anti-Gay Amendments open to being struck down in Federal Court.


In the immortal words of Peter Griffin: "And now we play the waiting game."


Common Sense

Election 2012: The Second Republican Debate

Brought to us by CNN this time (in their never ending effort to be the Igor to Fox News' Dr. Frankenstein)

Here's what you missed in 4 Minutes:

The 4 Minute version highlights just how stupid this debate became (especially with those "this or that" questions.  Come on CNN, this isn't a Miss America Pageant, it's the race for leader of the free world.  you might take it a little more seriously?).  Anyway, here is the full debate:

As expected the media tried to boil down the entire debate into the question of "who won?"  Obviously this is a gross (and I mean patently offensive to all well reasoned individuals) oversimplification, but let's see how it plays out:

CNN response was, with one exception, basically "Bachmann won because she showed up, spoke in clean sentences, and people saw her."  Wow CNN, thanks for that incredibly deep analysis of the issues.  I'm sorry but the fact that Bachmann didn't make a complete fool of herself is not a "win" in my book.  Leave it to CNN to completely ignore the issues, in favor of the politically safe "image win."  JFK would be so proud.

FOX NEWS responded with an article quoting Pawlenty's refusal to take a pot shot at Romney.  John King's attempts to bait him into reiterating his "Obam-ney-care" comment apparently failed to produce the political theatre for which both CNN and FOX were hoping.  Tragedy...

MSNBC does the best job of responding to the debate in a substantive manner (though obviously they have the audience to appreciate it).  Unfortunately, it was still couched in the terms of winners and losers.  Thankfully, they explained their reasoning a little bit, so it wasn't a complete waste.  They thought Romney and Bachmann were the winners (bachmann, again, because she showed up, and Romney because he didn't step on any landmines), while they down played Pawlenty's performance because (like FOX and CNN) they were disappointed that he didn't turn the debate into a fist fight by taking shots at Romney.  Nothing especially surprising there.  Though they did add that they thought the TEA Party won because all the candidates were talking from their play book.  A good point, that illustrates just how far the GOP has gone down the wrong road.  They also pointed out that the Economy was a loser last night because of how little time was spent on a substantive discussion.  Well said MSNBC.

UPDATE: Jon Stewart responded the next day in classic, hilarious John Stewart fashion.  Well played, as always, sir!

My Thoughts (Issue by Issue):

The Economy

Assuming for a moment that the economy will actually matter in 2012 (people almost never cast a vote based on their economic interests or based on an economic plan, which is how Pawlenty can get away with basing his entire plan on cutting taxes by more than 10% - 15% across the board... yeah right.), economics was basically a let's-bash-Obama-fest.  Not a single candidate talked about their economic plan, they just pilled up criticism on Obama.  Apparently he didn't do a single thing right (at least Ron Paul couldn't think of anything).  Pawlenty alluded to his plan, but we've already talked about what that was above, and it's not very detailed.  Bachmann whined about Obama's failings, while Cain tried to leverage his "I ran a company" cred.  Cain appeared to be the most thoughtful on the topic, but Pawlenty and Romney were in close pursuit.  The remaining candidates, as movement conservatives with little or no experience, just talked a lot of sweet conservative talking points, and wasted their time on the issue.

Bailouts were a mini-issue in the economy discussion (limited as it was).  All of the candidates expressed their rage against the Bush-Obama bailouts.  Romney patted himself on the back for an op-ed he wrote in 2008 criticizing the bailouts and recommending they go through normal bankruptsy instead.  Romney then got miffed when John King brought up another op-ed in which he predicted the auto-industry would implode under government control.  Ron Paul also jumped on bailouts, but added a criticism of the housing market.  He claimed, that we should let housing prices fall rather than artificially propping them up, so that we can "clear out" the market.  I agree, but I think we should have done that 3 years ago before people spent their life savings to survive this long.  At this point doing something like that might do more harm than good.  Either way, Ron Paul came out as the only sensible one on this discussion.  Everyone else just played the bailouts-bad card.

Another interesting side issue was NASA.  Gingrich spent a few minutes talking about how he wanted to privatize NASA, then when Pawlenty chimed in to say he supported keeping NASA as a federal program, Gingrich interrupted for an about-face that gave John King whiplash.

Finally, Romney got a question about FEMA, which he answered by saying "If we can drop a program down to the states, that's the right way to go, and if we can send it to the private sector even better."  Then he rambled on despite John King's mumbling attempts to first get him to actually talk about FEMA, and then finally to get him to shut up.  I agree with his position in so far as he recommends having the states do more disaster relief, however, there should still be a way for other states to help out.  It is also worth noting that states like CA (Earthquakes), Florida (Hurricanes), and Tornado Alley (Tornados) will end up having to spend more than states like Minnesota, Montana, Nevada, etc. who don't have natural disasters like that (or at least of the same magnitude).  The question is then, "is that fair or should other states have to help out?"  I think each state should have to pay for themselves, but that's just me.  As for dropping it to private industry, surely he isn't suggesting that insurance companies foot the bill is he?  they are not always reliable, don't always cover natural disasters, and no one likes them.  Thus, I'm not sure I agree with that part.

Health Care

Half of the candidates supported and defended the Ryan plan to cut medicare, while the other half, just kinda rolled on the issue.  No one liked the Obama plan, not even Romney who was for the plan before he was against it.  Gingrich back tracked on his criticism of the Ryan plan, in a long rant of gobbledegook.  Santorum and Bachmann (being the most conservative candidates) jumped on the Paul Ryan bandwagon without much fanfare.

The only candidates to do much talking about Health Care were Cain and Paul who both talked about needing to "restructure" the system.  Cain was at least honest about it.  He told someone in the audience "you're not gonna get everything we promised."  He doesn't want to JUST raise the retirement age, he also wants to restructure the system.  Paul did his usual Ron Paul dance criticizing big brother.

Perhaps the most shocking revelation came from Santorum, who criticized critics of the Ryan plan by stating "we want to replace medicare with something that is essentially the same."  How exactly you are going to fix a plan by replacing it with something "essentially" the same is not explained (I guess John King thought it was best to "leave it there").  This seems to be the usual Republican refrain.  "We hate Obamacare, but we either can't come up with anything better or we want to replace it with something basically the same but with our name on it."  Neither of those options seems to make much sense, but all the Conservative base seems to want to hear is anti-obama rhetoric, so the substantive plans don't seem to matter much.

Abortion

I love the new Republican talking point "I support the sanctity and dignity of life from conception to natural death."  I mean once you get past the fact that it's basically a pledge to kill mothers to save their fetuses and let people die horribly painful deaths rather than giving them the dignity of a painless death, it sounds just positively wonderful!  Bachmann, waffled the most on this point.  She was asked "do you support an exception for the health and safety of the mother or in the case of rape/incest?"  her response was to repeat the phrase "I am pro-life" in as many different combinations as possible (I support the sanctity of life, I support the dignity of life, I have lots of babies, I believe in adoption, etc.)  Of course, John King, in classic "we'll have to leave it there" CNN fashion, didn't press her to actually answer the question.  Pawlenty again pointed to his record "I have the most pro-life record in this field of candidates."  I didn't like the stuff he talked about, but at least he had something to say other than "I believe in the sanctity of human life."  Therefore, I think Pawlenty wins this topic, and Michele loses.

DADT

John King, in a rather shocking question, asked whether the candidates would seek to repeal the DADT repeal (starting to get dizzy on this issue?).  Most of the candidates dodged with the "I'd do what the generals tell me."  Gingrich made a complete fool of himself by saying, "I'd support repeal, because the generals were against the repeal in the first place."  Sorry Mr. Former Speaker.  They were, in fact, in favor of the repeal, because they thought the law was stupid.  In fact, more than 80% of the country thought the law was stupid.  Who exactly are you pandering to?  20% isn't a winning majority... Bachmann also jumped on that landmine by saying she supported a repeal of the repeal, though she at least had the decency of not lying. just just said she supported repeal. 

I'd like to take a moment and wonder what the F*** CNN was thinking when they asked this question.  This issue is more or less dead.  Polls show that more than 80% of respondents didn't think DADT was a good thing, and most politicians have jumped on board that bandwagon.  VERY few people at this point actually even think this is an issue.  So, why would you insert it into a campaign where it hasn't been an issue?  Are you trying to create controversy?  Are you trying to point out bad apples in the Republican field?  What exactly was your purpose?  It just came off as stupid to bring up such a politically dead issue.  That's all I'm saying.

DOMA/Gay Marriage

You can't have a Republican debate without throwing in a little fearmongering about the terrifying "gay agenda."  CNN jump right on board that joke of an issue by bringing up the Marriage Protection Amendment (which hasn't actually been an issue since I think 2005).  They even went so far as to ask Michele Bachmann if she would go into Massechussetts and try to overturn their law.  WTF?  Half the first appeared to want to leave the issue alone (to the states), while the other half wanted a federal amendment.  Obviously this is kinda ironic coming from the people who believe in small government.  obviously their small government rhetoric doesn't apply to social issues where they think we need a big government to act as the morality police.  Obviously this is a stupid issue, and thank your favorite heavenly deity that this issues is slowly becoming a non-issue.  CNN, please take the hint and stop bringing it up.  There are more important issues out there than fearmongering about the gays.

I was thoroughly impressed with Ron Paul's answer.  Ron Paul said "we shouldn't have group rights, gay rights, we should be talking about individual rights."  I couldn't agree more Mr. Paul.  The reverse is also true though, we should not be denied rights based on group affiliation either.  Individual rights should be just that, individual.  We should get them no matter what you don't like about us.  Now try explaining that to your party.  

Religion
This was pretty much a freebee.  John King asked about repigion and every candidate just spouted the same old crap.  Republicans want to be able to practice their religion in public and impose it on others while their doing so.  Ron Paul had an interesting take on it, but I don't think he went as far as I would have liked to see from a Libertarian.  He stated that the constitution doesn't allow a theocracy (duh) and something about freedom of religion and then something about christians being free to practice their religion in public, but I wanted him to talk about everyone being free to practice, not just christians.  Almost there Mr. Paul.

WHO WON?

Even though I hate this, and realistically I think all these candidates would make terrible presidents, I was most impressed with Pawlenty and Ron Paul.

Pawlenty: He proved that he is the only candidate (other than Romney) who has any experience whatsoever.  He answered every question with "I did that in Minnesota." I may not have liked what he did (like appointing conservatives to the SC of MN, or passing anti-choice legislation), but the guy does have experience and he proved it in this debate.  The guy also sounded like someone who could compete on the national level.  He wasn't talking in stories (like Gingrich), in abstractions (like most everyone else), or even in I-ran-a-business-isms (like Romney and Cain).  He was the one candidate who could honestly talk about the issues and point to a record.

Ron Paul: I find that the more I hear from this guy the more I like him.  He doesn't play games and he doesn't dance around issues for political gain.  He says what he thinks.  I like his "leave it to the states" mentality throughout the debate, and I was especially pleased with his comments about "I'm the commander-in-chief, I tell the generals what to do."  It may not placate the war-hawks of the far left, but thank god someone had the balls to say it.  If Ron Paul makes it to the Minnesota Primary I might register as a Republican just to vote for him.  He'd be the first Republican I ever voted for.

WHO LOST?

Bachmann: She didn't really answer a single question, and just showing up isn't enough to win anything.  Without something substantive, I would never vote for this candidate (even if I was foolish enough to vote Republican).

Cain: He got called out on a number of instances were he put his foot in his mouth (particularly with the whole Muslim issue) and he garbled out an answer that just didn't satisfy.  Then when John King moved on, he tried to correct himself, but that failed just as miserably and it made him look like a fool.

Gingrich: You lose automatically when you blatantly LIE in a debate! (The "generals" thought DADT was stupid and supported an repeal if Obama/Congress ordered it).  That was well covered in the media before the repeal.  You can't rewrite history in a debate, and attempting to do so makes you a LOSER!

Santorum: Santorum is a religious extremist and he reiterated that with his support of an "Anti-Gay Marriage Amendment."  While all the other candidates wanted to leave it primarily to the states, he sided unequivocally with federal intervention in marriage.  At least the rest of the field had the dignity of equivocating on the issue.

I give Romney a "neutral" for this debate.  He didn't do anything good, but he also didn't do anything stupid.  He was just kinda there... and unlike the media outlets I don't give points just for showing up.

So there you have it.  Everything you missed from the Republican debate, and unlike the media, you now have at least a basic understanding of what issues were discussed and how the candidates responded.  Congratulations!  you are now more informed than the 4 million people who watch the 3 major media outlets.

Common Sense