Monday, October 30, 2006

Lewis v. Harris - part 2

The New Jersey Supreme Court's recent ruling in Lewis v. Harris raises several important issues regarding how the law in this country treats gender and sexuality. The court ruled that the state could not deny the equal protection of the law to couples based on sexuality.

This begs the question: why isn't this obvious? The state constitutional amendments banning gay marriage in 2004 (and all the ones on the ballot in 2006) - why aren't these obvious equal protection violations?

A brief digression into equal protection law:

Traditionally, the judicial system shows deference to the decisions of legislative bodies. Even if a certain law discriminates against a certain group of people, Supreme Court precedent points towards only needing the legislative body to provide a "rational basis" for the law.

In certain cases, however, courts use "strict scrutiny" in looking at laws. A law that faces strict scrutiny must provide a compelling government interest, and must further that interest in the most "narrowly tailored" and least restrictive way possible. Usually (though not always), laws that face this test are struck down.

Cases that warrant strict scrutiny are usually those that impinge upon a "fundamental interest" (e.g. voting) or when the law uses a "suspect classification" (e.g. race). The Supreme Court is often hesitant to apply strict scrutiny; in the 1973 case San Antonio v. Rodriguez the Court ruled both that education is not a fundamental interest under the U.S. Constitution and (essentially) that socio-economic status is not a suspect classification.

To return to the topic at hand, laws restricting gay marriage do not usually face strict scrutiny. Marriage is not a fundamental interest under the U.S. Constitution, and sexuality is not usually considered a suspect classification. In this arena, state legislatures (or even the U.S. Congress) can get away with a lot.

Likewise, gender-based discrimination also does not face strict scrutiny. Gender-based classifications fall, according to precedent, under "intermediate scrutiny," where a law's enacting body needs to provide a "exceedingly persuasive justification." While this raises a high bar for legislation, it still allows for legalized gender discrimination. If anyone asks why an Equal Rights Amendment is needed when equality is already "guaranteed" in the Fourteenth Amendment, this is the reason.

Since this post is intended for A Blog Without a Bicycle's Feminist Blog Carnival, I want to address what all this legalese has to do with feminism. What feminism means to me is a striving towards realization of the ideals of equality upon which America is built. If we are to successfully promote feminism's ideals, then equality for all genders and sexualities should be embodied not just in our thoughts and actions, but in our laws as well. While the justices of the New Jersey Supreme Court are correct - "although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society" - we should not be any less vocal about promoting an Equal Rights Amendment for the Constitution - one that recognizes the equality of all people, regardless of gender or sexuality.

Thursday, October 26, 2006

A rose by any other name?

This is the first of what may become several posts on the New Jersey Supreme Court's decision in Lewis v. Harris.

First of all, let's be clear what happened on Wednesday. The court unanimously ruled that homosexual couples were entitled to all the rights of heterosexual couples. What they're split over is a word: marriage. New Jersey lawmakers must provide homosexual couples with equal rights, but they need not call such unions "marriages."

What?

Homosexuals are entitled to everything that heterosexuals are, save a government stamp that says "Just Married"? It offends all sense of rationality. If A is equal to C, and B is equal to C, A is not necessarily equal to B? The whole idea just boggles my mind, and it makes me want to find a dictionary to rip in half.

The decision has one other major flaw: I'm not so sure it was wrongly decided. As the court wrote, "Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society." Truer words were, unfortunately, never spoken. The role of the court is to make sure that all couples find equal protection under the laws. If a bunch of conservative prigs want to call homosexuals something other than "marriages," I'm not sure there's any way a court can order them to do otherwise on constitutional grounds.

This extremely bizarre ruling stems from what I have long claimed is the most problematic issue surrounding gay marriage: why is government in the marriage business at all? The people who are most in support of "traditional" marriage are often influenced, I would imagine, by religion. Indeed, marriage is an extremely, if not fundamentally, religious ceremony. Why involve government at all? If the government wants to confer certain legal rights for couples, give those rights to all couples, and call them "legal unions," or "civil unions." If two people want to be "married," let them be married in whatever secular or religious ceremony they prefer, and let them be married before the eyes of themselves, their loved ones, and whatever god in which they believe. Homosexual couple would be given all the rights they deserve, and religious conservatives would get to keep "traditional" marriage as it is, and if they are so close-minded as to not want to attend a church that marries homosexual couples, then they have every right not to do so.

Thursday, October 19, 2006

"The Beginning of the End of America"

If you have a few minutes, I'd suggest watching this clip from Countdown with Keith Olbermann. It's an excellent and powerful piece of oration. Maurizio Viroli would be proud.

Among his points was one I didn't consider in my post yesterday, regarding the implications of suspending habeas corpus for non-citizens: "If you are pulled off the street tomorrow and they called you an alien or an undocumented immigrant or an unlawful enemy combatant, exactly how are you going to convince them to give you a court hearing to prove you are not?"

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In other news, I found out that the first website I checked every morning in the summer and fall of 2004 is back up - this time tracking the Senate races.

Wednesday, October 18, 2006

Geneva? Isn't that a font?

A few helpful notes for people wanting to look beyond the spin on the military commissions law that President Bush just signed:

The Fourth Geneva Convention (GCIV) states that when a non-military prisoner "is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State." So, the only possible excuse that President Bush would have for violating the Geneva Conventions is that putting a suspected terrorist on trial somehow endangers the state.

So, yes, he technically has a way out, but the Convention also clearly states: "Such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial.... They shall also be granted the full rights and privileges of a protected person...at the earliest date consistent with security of State...."

GCIV sets a pretty high bar, clearly intending that signatories cannot use the "national security" excuse blithely. It demands a "fair and regular trial," written in the Convention as a "regularly constituted court, affording all the judicial guarantees which are recognized as indispensible by civilzed peoples." The commissions, as Justice Stevens wrote in the opinion in Hamdan v. Rumsfeld, are clearly not "regularly constituted courts" - not given the abuses of justice allowed at such commissions.

And don't forget, the US is a signatory to the Geneva Conventions, making them the "supreme Law of the Land."

And, please, signing into a law a provision that detainees from petitioning for writs of habeas corpus? Nevermind that this measure is very possibly unconstituional (what part of "in cases of rebellion or invasion" does Congress not understand?), but it's just plain wrong. To try people in kangaroo courts in breach of international law is one thing, but to not give them any recourse to challenge their "enemy combatant" status is cruel. Is President Bush that confident that everyone we're holding at Guantanamo is an enemy combatant?

Saturday, October 14, 2006

A Sum of Zeros

So, I've never known quite how I feel about prediction markets such as TradeSports, but along with the polls I will undoubtedly be tracking in the new two years, I will include predictions from TradeSports about who the nominees for President will be. We'll see how well it does. Unfortunately, my first TS review comes after the first big news of the '08 season. And all those poor people who had shares in Mark Warner...

So, here are the last trade prices for the major candidates and potential candidates (read them as the percent chance that that candidate will get his party's nomination):

Democrats:
Hillary Clinton: 49.4
Al Gore: 16.9
John Edwards: 14.0
Barack Obama: 4.0
Evan Bayh: 3.9
John Kerry (oh, please, please not again): 3.3
Russ Feingold: 2.7

Republicans:
John McCain: 37.8
Rudy Giuliani: 18.4
Mitt Romney: 15.2
George Allen: 6.7
Mike Huckabee: 5.8
Condoleezza Rice: 4.0
Newt Gingrich: 3.7

While we're at it, let's look the chances of the GOP retaining control after November:
House: TS - 37.2 (NYTimes: GOP down by 1 with 16 toss-ups)
Senate: TS - 73.0 (NYTimes: GOP up by 1 with 3 toss-ups)

Welcome to the New Bull Moose Party!

Why the new Bull Moose Party, you might ask?

The original Bull Moose Party, actually named the Progressive Party, was formed by Teddy Roosevelt, after losing to William H. Taft for the Republican nomination for the 1912 Presidential race.

The Bull Moose Party was progressive both in its democratic ideals - e.g. calling for women's suffrage - and it's view of the role of government. Government, in the progressive's eyes, was capable of being a force for good, an entity capable of effecting positive change. The Bull Moose Party stood for higher taxes on the rich, more social welfare and economic protection for the poor, and regulation of those elements of capitalism that impoverish people.

These are the ideals of progressivism. They are ideals that flourished in F.D.R.'s New Deal and in Johnson's Great Society. They are ideals that today's Democratic Party has abandoned.

As the 2008 election season begins this fall, this new Bull Moose Party will push for a return to the progressive values that have become lost in the current political climate. There are more progressives out there than many politicians realize. And we will be heard again.