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SCOTUS dumps DOMA: fair, simple, American

Pat Ryan 1 Comment

Brown v. Board of Education; United States v. Windsor: do they belong together?  Yes they do: today’s U.S. Supreme Court ruling in the Windsor case is just that historic.  In a very specific and non-technical way Justice Anthony Kennedy’s opinion makes clear what the 5-4 court ruling says the Constitution requires: the “[Defense of Marriage Act] is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”  You can read the professional reports on the decisions announced today here and here, and elsewhere, but here’s my take:

All people deserve equal treatment under the law.  If the federal government grants certain legal privileges to dual-sex couples who are legally married under the laws of their state, the same privileges must be available to single-sex couples who are legally married under the laws of their state.  Equal treatment; fairness.  The court did not rule on the constitutionality of gay marriage today; it ruled on an issue of equality before the law.  In refusing to rule on the Hollingsworth case regarding California’s Proposition 8, which outlawed gay marriage in the state, it sidestepped ruling one way or another on the constitutionality of gay marriage…perhaps another day.  But that decision does have the effect of re-legalizing gay marriage in California, making it state #13.

In practical terms the Windsor ruling means same-sex couples should be treated the same way as opposite-sex couples when it comes to federal tax law and Social Security and insurance and immigration, all that federal stuff.  In fact there are more than a thousand benefits coming into play here, and McClatchy does a good job summarizing that here.  And for fun, TV Guide summarizes the celebrity reaction to the rulings here.

This is not about what one religion or another teaches about homosexuality; this is about how the civil law treats American citizens regardless of their religious belief, or their gender or their race or national origin.  A religion is free to believe and teach what it wants about the morality of homosexual behavior or same-sex marriage, and its teachings and laws are important to the members in good standing of that particular faith.  But those teachings are not binding on Americans who are not members of that denomination.  The civil law, which orders how we all deal with one another in the secular society outside the confines of our many private clubs, is blind to such moral questions.  States have the right to decide who can “marry” and who can’t, and the federal government has to treat all “married” couples in the same way, regardless of the gender of the spouses.  Simple, really.  Fair.  American.  Congratulations, U.S.A., on another successful day at the office.

Where do we go from here

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It’s been an amazing couple of days.  Thanks to leaks of government documents and the hard work of some reporters, we’ve learned that the government has been collecting data on our telephone calls—three billion phone calls a day—and essentially watching from inside our computers while we work on the Internet.  Government officials say this is for our own protection, that it’s a good way for them to gather information that can prevent terrorist attacks.  The programs began while George W. Bush was president, and have continued under Barack Obama.

I’ve tried to get my head wrapped around the rapid-fire revelations of the government’s massive system of spying on its citizens; not a rogue operation, but a system pursued by the administration and authorized by Congress and the special Foreign Surveillance Intelligence Courts.  I see that the stories are falling off of the front pages, but we need to fight becoming complacent about this Patriot-(Act)-ic intrusion into our privacy.

On Wednesday news broke of a secret order to Verizon forcing it to turn over metadata of all of its customers calls…we think this includes business, residential and cellular, and we think there are probably similar orders for other telephone providers, but the orders themselves are so secret that the companies can’t acknowledge if it exists.  On Thursday we learned that the government has been tapping directly into the central servers of the major Internet companies to access emails, pictures and videos, etc.  Late Thursday night government officials confirmed the program but insisted it is targeted only at people outside of the United States.  They even claimed that the programs have succeeded in stopping terrorist attacks, although that claim seems dubious.

By Friday the president himself tried to assure American citizens that these programs were for their own good and that we have nothing to fear.  He said, “It’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. We’re going to have to make some choices as a society. And what I can say is that in evaluating these programs, they make a difference in our capacity to anticipate and prevent possible terrorist activity.”

Really? Well, that’s a load off of my mind; thanks for clearing that up for me, B.

I wrote earlier this week, “We cannot be such a craven and cowardly people that we’re willing to let our government spy on us constantly and record our activities and our associations in the name of protecting us from terrorist threats.  If that’s true, then not only have the terrorists already won but the American example of an open and free society is lost.  What the hell would the Founding Fathers think of us if they knew we were willing to abandon our liberty to a government that assured us it is only looking over our shoulders and listening to our phone calls for our own good?”

Only the ignorant or the naïve have ever expected total security in this world, or absolute liberty and privacy.  That’s not the world we live in.  There are crazy religious extremists who are killing innocent people out of a deluded belief that they are doing God’s will, and nothing more than common sense is needed to know that we have to take reasonable measures to protect ourselves from them.  (There are crazy religious extremists who trying to turn our country into a theocracy of their own denomination out of a deluded belief that that is God’s will, and we need to step up and stop that attack, too.)  I have no doubt that these programs have some positive effect when it comes to gathering valuable information against potential terrorists; what I object to is that these effective programs are targeted at all Americans. Jack Shafer put it well: it’s not that I object to the government pursuing terrorists and suspected terrorists…

What’s breathtaking about these two government surveillance programs that the Guardian and the Washington Post have revealed is that they’re vast collections of data about hundreds of millions of people suspected of no wrongdoing and not part of any civil action.

And, “Ultimately, it will be about the government’s pursuit of all the digital breadcrumbs we produce as necessary by-products of day-to-day life—and phone records and Web data are just a small part.

Bank records, credit history, travel records, credit card records, EZPass data, GPS phone data, license-plate reader databases, Social Security and Internal Revenue Service records, facial-recognition databases at the Department of Motor Vehicles and elsewhere, even 7-Eleven surveillance videos comprise information lodes that are of equal or greater value to the national security establishment than phone and Web files. It doesn’t sound paranoid to conclude that the government has reused, or will reuse, the interpretation of the Patriot Act that it presented to the secret FISA court in its phone record and Prism data requests to grab these other data troves.

Warning: slippery slope ahead…

UPDATE: A short time after I posted I ran across this: the NSA suggested to the Bush White House that the government needed to reconsider how it could effectively spy on people in the Digital Age, although it promised to (of course) obey the law and respect the Fourth Amendment to the Constitution. Well, yeah…

There are also a couple of pertinent new tweets worth a look over there on the rail, too.

Closing the barn door…after the horse has gotten out, moved to the big city, studied interior design but got his degree in business, used sweat equity to earn a small stake in an Internet startup, took his profit from the IPO and bought into an established breeding operation in central Kentucky where he could work when he pleased training promising new foals but mostly just took it easy and reflected on how lucky he was to escape the drudgery of the farm, and died a beloved figure at the ripe old age of 32

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The Associated Press issues a correction about Manti Te’o’s girlfriend in all stories

Rhetoric doesn’t match the facts, and Roberts may not be a traitor to conservatism after all

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A follow-up on Thursday’s Supreme Court Obamacare ruling:

The campaign for president hasn’t taken a time out since the court issued its ruling on the health care insurance reform last week; Barack Obama and Mitt Romney are all over it, but it turns out they’re getting a good bit of it wrong—both of them.  Check out the AP fact checker on the rhetoric since last Thursday: the law does not guarantee everyone can keep the insurance they have now indefinitely, 20 million people losing their insurance is a worst-case scenario estimate, there’s no evidence the law will add trillions to the budget deficit or raise taxes on the American people by half a trillion dollars, and very few of us should be counting on rebate checks from our insurance companies.

A healthy portion of the American people had some level of surprise or disgust at the action of Chief Justice John Roberts in this case: surprise that he found the law was constitutional, disgust at his seeming abandonment of conservative principles to come up with a way to find that the law was constitutional.  Today, CBS News quotes sources inside the court who say Roberts changed his mind on this ruling and worked to find a way to save the law, which angered his conservative colleagues.  Meanwhile, two more top conservative columnists, George Will and Charles Krauthammer, have joined the ranks of those who see a silver lining in the ruling: Roberts found a way to strike a blow for limited government while at the same time protect the integrity of the court itself!

Will:

If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”

Krauthammer:

More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.

Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.

Last week I said that it would have been unfortunate for the law to be rejected by a single vote, in what would have amounted to a “party line” vote.  Will and Krauthammer and others think the chief justice of the United States was thinking the same as me…although he was thinking it sooner, I’m sure, and with much greater legal clarity.  But still, he was on the right track…