To be clear, nothing in Boudin’s opinion suggests that he fears marauding bands of gays will corner him in an elevator and play grab-ass, but Boudin goes to great pains to deny that a law that systematically excludes gay couples from the dignity of full marriage rights is motivated by “hostility to homosexuality.” “Traditions are the glue that holds society together,” Boudin proclaims, and the desire to maintain what marriage discrimination’s supporters call the traditional definition of marriage “is strong and can be honestly held.”

And yet Boudin ultimately concludes that the Constitution does not allow the federal government to exclude gay couples from federal marriage benefits once they are lawfully married by a state. He’s right about this, but he reaches this conclusion in a somewhat roundabout way.

Admittedly, Boudin’s task is muddled by genuinely incoherent Supreme Court precedents. Forty years ago, the Court said that minority groups that are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” are entitled to the strictest constitutional protections against discrimination. LGBT Americans are obviously such a group. Yet the Supreme Court has declined to extend this heightened constitutional scrutiny to anti-gay laws when given the opportunity to do so.

At the same time, the Court has also applied something more rigorous than very cursory constitutional scrutiny it normally applies when examining many anti-gay laws. Thus, the justices struck down an anti-gay Colorado constitutional amendment — holding that the amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.”

Boudin reconciles these two lines of precedent by noting that the Supreme Court may not accord the most rigorous scrutiny to all discriminatory laws, but it has still struck down laws “in which courts have had reasons to be concerned about possible discrimination.” Citing decisions striking down discrimination against “women, the poor and the mentally impaired,” Boudin notes that “gays and lesbians have long be the subject of discrimination,” and that is reason to treat DOMA with skepticism.

If Boudin had stopped there, or maybe a few paragraphs later where he explains that DOMA strips same-sex spouses of “meaningful economic benefits” similar to the benefits denied in other laws that were struck down, he would have provided an excellent argument for why marriage discrimination cannot be squared with our Constitution and declared that marriage equality must be the law of the land.

Judge Boudin, however, is clearly worried about what I have at times labeled the “Alabama Problem” — meaning that a Supreme Court decision recognizing the Constitution’s full promise of equality must necessarily extend to states with a legacy of massive resistance to the Court’s civil rights decisions. The justices may not yet be ready to take such a politically controversial plunge. Significantly, Michael Boudin does not appear ready to take that plunge either, and so he inserts a bizarre states rights argument into an otherwise excellent opinion:

[T]he denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

The upshot of this paragraph is that it allows Boudin to conclude that states like Alabama can continue to exclude gay couples from the Constitution’s promise of equality, while still extending that promise to couples in Massachusetts. But it is bad constitutional law that bears a disturbing resemblance to arguments the Affordable Care Act’s opponents have used to attack Medicaid. America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system.

Ultimately, however, Boudin’s opinion is a cause for optimism. The last federal appeals judge to strike a blow for marriage equality, Judge Stephen Reinhardt, is a well-known liberal crusader with little influence over the conservative justices. Boudin, by contrast, is a Republican appointee who’s clearly still uncomfortable with Constitution’s promise of equality throughout America. And yet he just published an opinion striking down the Defense of Marriage Act. This bodes well for gay couples when DOMA comes before the Supreme Court.

• The California Supreme Court appears likely to overturn a man’s death sentence 25 years after prosecutors withheld evidence that could have saved him from a sentence of death.
• Meanwhile, Rhode Island turned over an inmate to federal officials after resisting doing so because he could face the death sentence in federal court.
• Virginia Attorney General Ken Cuccinelli tries to make it easier for people to arm themselves while driving.
• Justice Thomas is no longer mad at Yale.
• Rob Weiner discusses how the roots of much of the case against the Affordable Care Act can be found in discredited Supreme Court decisions striking down child labor laws and other essential regulations.
• And, finally, Mitt Romney’s website informs us that “Mitt will work to expand and enhance access and opportunities for Americans to hunt, shoot, and protect their families.”

It is possible, if extremely unlikely, that the justices will use this opportunity to fix the error they committed in Citizens United. Even if one of the five conservatives responsible for the explosion of money in politics does reconsider his mistake, however, the Supreme Court’s calendar makes it all but certain that Citizens United will remain in effect until after the 2012 election:

The Supreme Court will consider the major sequel to its controversial ruling on campaign finance at the Justices’ private Conference on June 14, the Court’s electronic docket showed Tuesday. The case is American Tradition Partnership, et al., v. Bullock (11-1179). The Court will be considering a request to overturn, without briefing or argument, a Montana Supreme Court ruling that upheld a state law curbing the campaign spending of corporations in that state — a ruling that is said to conflict directly with the Justices’ 2010 ruling in Citizens United v. Federal Election Commission, allowing such spending.

If the Justices choose not to reverse that state decision summarily, they are likely to grant review and put the case over to the new Term starting October 1, with a decision likely after this year’s election. The state court ruling, in the meantime, is on hold, thus allowing corporations to spend freely in Montana in this year’s election cycle.

Republican interest groups plan to spend about $1 billion to buy Mitt Romney a new house at 1600 Pennsylvania Avenue between now and the end of this cycle.

It is, of course, possible that the justices will decide that removing the taint of corruption Citizens United imposes on American democracy is so urgent that they should hear the case during a special summer session, but this is a highly irregular procedure that only occurs when the justices believe it is unusually important that the case be decided quickly — such as when the Court’s five conservatives decided to shackle our democracy with Citizens United in the first place.

Abdul Awkal with his attorney David Singleton

Awkal, who was diagnosed with Schizoaffective Disorder, believes that he advises the CIA on “Islamic religion and culture,” and he’s spent more than a decade writing letters to former CIA directors and to President Obama offering advice on the Wars in Iraq and Afghanistan. Although he was sentenced to die for a double murder, Awkal says that he is going to be killed because the “CIA wanted him dead.”. He has a long history of hallucinations and mental breakdowns and was once ruled mentally incompetent to stand trial.

Singleton tells ThinkProgress that he will ask Kasich to reconsider his decision, and that Awkal’s legal team will also seek relief in state and, if necessary, federal court. Awkal could have a strong case. The Supreme Court held in Panetti v. Quarterman that it is unconstitutional to execute a person who is unable to “‘comprehen[d] the reasons’” for his punishment” or who is “unaware of … why [he is] to suffer it.” If Awkal truly believes that he is being executed because the CIA wants him dead, rather than because he committed a serious crime, than he is constitutionally beyond the reach of Ohio’s death chamber.

Ultimately, however, the fact that Awkal’s attorneys need to prove exactly how insane he is in order to save his life highlights the absurdity of America’s rules for state-sponsored killings. The Supreme Court has already recognized that the Constitution forbids executions of juvenile offenders or the mentally retarded because diminished mental capacity makes it harder for an offender “to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information.” The same logic also applies to a severely mentally ill man such as Abdul Awkal.

Too inexperienced to be president

“I was speaking with one of these business owners who owns a couple of restaurants in town,” Romney said. “And he said ‘You know I’d like to change the Constitution, I’m not sure I can do it,’ he said. ‘I’d like to have a provision in the Constitution that in addition to the age of the president and the citizenship of the president and the birthplace of the president being set by the Constitution, I’d like it also to say that the president has to spend at least three years working in business before he could become president of the United States.‘”

Romney continued: “You see then he or she would understand that the policies they’re putting in place have to encourage small business, make it easier for business to grow.

Watch it:

Romney’s amendment would come as quite a shock to the last person to earn the Republican Party’s presidential nomination. Sen. John McCain (R-AZ) graduated from the Naval Academy in 1958 and served more than two decades in the United States Navy, including more than five years as an prisoner of war. After retiring from the Navy at the rank of captain, McCain turned to politics and was elected to the House in 1983 and to the Senate in 1987. Because McCain devoted his life to serving his country, rather than to working in business, the Romney amendment would disqualify him from the White House.

President Dwight D. Eisenhower would likely suffer a similar fate. Like McCain, Eisenhower was a career officer before entering politics, graduating from West Point in 1915 and eventually commanding the Allied victory over Nazi Germany. It’s not clear whether Romney’s amendment would count the time Eisenhower spent as President of Columbia University as “working in business,” and Eisenhower did work two years supervising the night shift at a creamery before entering college. Unless Romney would allow Eisenhower to count his time in academia as business experience, however, Eisenhower lacked the three years required to become president under the Romney amendment. Saving human civilization from Adolf Hitler is not a sufficient qualification.

President Theodore Roosevelt also could not have been president under the Romney amendment. Roosevelt graduated from Harvard college in 1880 and entered Columbia Law School, but eventually dropped out to mount a successful bid for the state legislature. After serving two terms, he left New York to grieve the deaths of his wife and mother and worked as a law enforcement officer in the Dakota Territory. After two years in exile he returned to New York to continue a sweeping career that would include an unsuccessful bid for New York City mayor, two years as head of the city’s police commission, an appointment as Assistant Secretary of the Navy, service in the United States Army as a cavalry colonel, a successful election as governor of New York and brief service as Vice President of the United States. Roosevelt was also a prolific author and historian who wrote a history of the role of the burgeoning U.S. Navy in the War of 1812 that is still studied by scholars today. None of these experiences, however, are work in business, so Roosevelt does not appear to be qualified for the presidency under the Romney amendment.

Republican icon Ronald Reagan is a borderline case. Reagan worked as a radio announcer, an actor and as the president of a trade union before entering politics. Reagan spent eight years working for General Electric, but as host of GE’s television show General Electric Theater. It’s not clear whether this qualifies as business experience under Romney’s amendment, and it certainly does not qualify as “small business” experience.

One person who almost certainly would qualify for the presidency under the Romney amendment: Barack Obama. President Obama spent twelve years as an attorney with a small private law firm, in addition to spending two summers working for corporate law firms as a law student.

• Muslim civil rights groups hint at a court challenge to a Kansas law signed by Gov. Sam Brownback (R-KS) on Monday that is widely viewed as an attack on Islamic law.
• Public employee unions in Florida tell a state court that it should block a prison privatization plan.
• The Supreme Court will not hear the issue of whether and when police may use a Taser.
• Former Occupy Wall Street protesters sue Mayor Michael Bloomberg and other top New York City officials over the alleged destruction of a library of books they kept at the protest site.
• Justice Stevens receives the Medal of Freedom.
• Gay rights groups file a lawsuit seeking marriage equality in Illinois.

In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did. . . .

But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full. That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.

It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country. Writing bad checks in Louisiana can earn you up to 10 years in prison. In California, by comparison, jail time would be no more than a year.

This is hardly an unusual story from the for-profit prison industry. The industry spends millions lobbying lawmakers to put more people behind bars. Two Pennsylvania judges were recently convicted of a “cash for kids” scandal where they took bribes from corporate prisons in return for sentencing juveniles to lengthy sentences for very minor offenses. Meanwhile, corporate prisons pad their profits by skimping on basic services for inmates or by hitting prisoners with inflated fees. A prison corporation in New Mexico was recently hit with $1.1 million in fines for understaffing its facilities, and another corporate prison in Georgia charges inmates $5 a minute for phone calls — while paying them only $1 a day for their work.

Listen:

Cruz responded to Dewhurst’s ad by immediately accusing his opponent of racism — claiming that it’s real purpose is to communicate to Texas Republicans that “anyone with a ‘Z’ in their name is unelectable.” Cruz, however, would have much more credibility as a crusader against anti-Hispanic bigotry if he had not launched his own television campaign with a racially charged ad touting his efforts to ensure that Texas could execute an “illegal alien”:

When the UN and World Court overruled a Texas jury’s verdict to execute an illegal alien for raping and murdering two teenage girls, Ted Cruz fought all the way to the Supreme Court, and he delivered. . . . Politicians cut deals, principled conservatives deliver.

Watch it:

As ThinkProgress previously explained, the case Cruz flags here had nothing whatsoever to do with whether Texas is allowed to kill Mexican nationals who commit capital offenses. Rather, the case presented the very narrow question of whether Texas must comply with America’s then-existing treaty obligation to inform foreign nationals who are arrested in the United States of their right “to request assistance from the consul of his own state.” What Cruz won in the Supreme Court is Texas’ right to ignore an international legal obligation that even North Korea has honored.

Nevertheless, Cruz chose to open his campaign with an ad suggesting that he was all that stood between poor, vulnerable Texas Republican families and a marauding Mexican “illegal alien.” He hardly has the moral high ground to protest against someone else’s attempts to inject race into this campaign.

Abdul Awkal with his attorney David Singleton

• Survived a Civil War: In 1975, when Abdul was sixteen years old, a civil war erupted in his home country of Lebanon. Abdul lived through this war for eight years before he was able to escape to Michigan to live with family members. Although Abdul never sought treatment during his first months in the United States and thus was not diagnosed with a mental illness until sometime later, he said that he spent his first four months in America sitting on his brother’s couch — behavior an Ohio clemency board said was “as if he was suffering from Post Traumatic Stress Disorder.”
• History of Mental Breakdowns: Abdul eventually found work as a gas station attendant. About a year after he arrived in the United States, however, he was wrongfully accused of stealing from his employer. According to the Ohio Supreme Court, he then suffered a mental breakdown. Abdul “became hysterical, cursing and breaking things, vomited and then collapsed.” He was taken to a Detroit hospital in a straitjacket and later released with instructions (that he disregarded) to seek psychiatric treatment. Some time later, Abdul suffered at least one more mental breakdown as his marriage to the woman he eventually killed became increasingly dysfunctional. A mental hospital again told him to seek psychiatric care, but he did not follow up because he says he could not afford treatment.
• Suicidal Depression: In November of 1991, about two months before he would kill his estranged wife and brother-in-law, Abdul finally did attend four counseling sessions because he was depressed and had thoughts of suicide.
• Hallucinations: On January 7, 1992, Abdul shot his wife and brother-in-law during a meeting related to Abdul’s pending divorce. While awaiting trial in an Ohio jail, he began having hallucinations. Abdul says he saw his wife speak to him and tell him to “join her.”
• Incompetent to Stand Trial: Abdul’s trial was delayed after a court found him mentally incompetent to assist in his defense. During the period between his arrest and his trial, county psychiatrists experimented with various anti-depressant, anti-psychotic and anti-anxiety drugs in an attempt to control his hallucinations and enable him to participate in the trial, and a judge eventually deemed him competent to state trial in September of 1992. During the pre-trial period, the prosecution also offered him a plea bargain, which he rejected, that would have taken the death penalty off the table. It’s not clear what Abdul’s mental state was when he rejected this deal.
• Second Finding of Mental Incompetency: In 2004, Abdul wrote a federal judge asking that his appeals be terminated and that he be executed swiftly. The judge responded by ordering a psychiatric evaluation. Twelve years after his arrest, Abdul was diagnosed with Schizoaffective Disorder, depressed type and determined to be mentally incompetent to waive his appeals.
• Letters to the CIA: In 2001, Abdul started writing letters to then-CIA Directors George Tenet and Porter Goss, along with former CBS new anchor Dan Rather and, eventually, President Obama offering advice on how to fight terrorism and the wars in Iraq and Afghanistan. In one letter to Obama, for example, Abdul advises that rather than dismantling or safely detonating the Taliban’s explosive devices, U.S. servicemembers in Afghanistan should “replace the electronic receiver inside the IEDs with ours and keep them buried.” Abdul also told a clemency board that he advises the CIA on “Islamic religion and culture” and that he is upset that the CIA did not listen to him after he warned them about 9/11. At other points, he’s claimed he is being executed because the “CIA wanted him dead.”

As Supreme Court Justice Potter Stewart recognized almost four decades ago, the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” This is why the Constitution forbids executions of juvenile offenders or the mentally retarded. And it is why the death penalty is reserved to only a handful of the most severe crimes. Indeed, American juries consider death such an extreme sanction that only 2 percent of convicted murderers are sentenced to die.

There’s no question that Abdul committed a terrible crime more than twenty years ago, and he has spent every subsequent minute of his life in state custody because of his actions. That will not change if Gov. Kasich grants Abdul clemency, or if the Supreme Court recognizes that people with severe mental illnesses do not belong on death row.

]]> http://thinkprogress.org/justice/2012/05/29/491168/ohio-set-to-execute-severely-mentally-ill-inmate-next-week/feed/ 0 http://thinkprogress.org/justice/2012/05/29/491203/justiceline-may-29-2012/ http://thinkprogress.org/justice/2012/05/29/491203/justiceline-may-29-2012/#comments Tue, 29 May 2012 11:49:55 +0000 Ian Millhiser http://thinkprogress.org/?p=491203 Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice
• The Ninth Circuit handed a slight setback to the Obama Administration’s arguments against the unconstitutional Defense of Marriage Act when it ordered last week that a challenge to DOMA must first be heard by a three-judge panel before it might be heard by a larger panel of the court. Three-judge panels lack the authority to overrule a twenty year-old anti-gay precedent that makes the attack on DOMA more difficult.
• Several Supreme Court justices have made early July plans, suggesting that the health care case will be decided by late June.
• Meanwhile, then-Senator Obama’s 2005 speech explaining why he would not vote to confirm Chief Justice Roberts looks pretty prescient right now.
• Anti-gay Virginia lawmaker Bob Marshall (R), who was last seen blocking a judicial appointment because the judge-to-be is gay, claims that being gay “cuts your life by about 20 years.”
• The law firm of Dewey & LeBoeuf becomes the largest law firm ever to declare bankruptcy.
• And, finally, the award for the most politically unpalatable headline in a column that actually makes some interesting points goes to Sanford Levinson with “Our Imbecilic Constitution.”
]]> http://thinkprogress.org/justice/2012/05/29/491203/justiceline-may-29-2012/feed/ 0 http://thinkprogress.org/justice/2012/05/25/490663/texas-judge-vote-for-me-because-rush-limbaugh-loves-my-decisions-favoring-energy-corporations/ http://thinkprogress.org/justice/2012/05/25/490663/texas-judge-vote-for-me-because-rush-limbaugh-loves-my-decisions-favoring-energy-corporations/#comments Fri, 25 May 2012 17:30:08 +0000 Ian Millhiser


Judge Trey Loftin

Texas trial Judge Trey Loftin is running for reelection. He’s also currently hearing a case in which he’s handed down some rulings favoring a drilling company. And he wants you to know that his decisions favoring this corporation are why you should vote for him:

A Texas state judge is promoting his recent decisions favoring a gas driller in its dispute with a local landowner as part of his election campaign, a move some legal scholars say may violate state judicial ethics rules.

With aspects of the case still pending in his courtroom, Judge Trey Loftin sent fliers to voters saying he forced the U.S. Environmental Protection Agency to back down.

Loftin, who is campaigning to keep his state judgeship in a county west of Dallas, also sent out materials with the image of talk show host Rush Limbaugh, who credited the judge’s ruling in favor of driller Range Resources Corp. (RRC) (RRC), based in Fort Worth, Texas, for getting the EPA to reverse course.

The clear implication of his campaign fliers, of course, is that a vote for Judge Loftin is a vote for the very same kind of industry-friendly, Limbaugh-approved decisions he’s handed down in the past. Rather than, say, future decisions that side with big business only when the law favors big business and with local landowners when the law is on their side.

Worse, by making a case that is still pending in his courtroom a centerpiece of his campaign, Loftin might as well advertise that voters (and industry donors) can influence the outcome of that very case simply by supporting his campaign. This kind of campaign would be inappropriate even if Loftin were simply suggesting that he would rule against a frivolous lawsuit claiming that every Texan has a fundamental right to an unlimited supply of purple plastic plates, but it is all the more troubling when he implies that a wealthy and powerful industry group could keep a friendly judge on the bench by throwing their support behind him.

]]> http://thinkprogress.org/justice/2012/05/25/490663/texas-judge-vote-for-me-because-rush-limbaugh-loves-my-decisions-favoring-energy-corporations/feed/ 0 http://thinkprogress.org/justice/2012/05/25/490487/how-top-gop-economist-douglas-holtz-eakin-helped-slay-doma-last-night/ http://thinkprogress.org/justice/2012/05/25/490487/how-top-gop-economist-douglas-holtz-eakin-helped-slay-doma-last-night/#comments Fri, 25 May 2012 14:30:54 +0000 Ian Millhiser http://thinkprogress.org/?p=490487

Douglas Holtz-Eakin

Douglas Holtz-Eakin is one of the Republican Party’s top economic pundits. He served as a top advisor to Sen. John McCain’s (R-AZ) 2008 presidential campaign. He organized an amicus brief which the Eleventh Circuit relied on heavily in its decision striking down the Affordable Care Act, despite the fact that his brief is riddled with factual errors and miscalculations. And he is one of the nation’s top evangelists for the idea that we can solve our economic woes simply by saving rich people from the crushing burden of having to pay their fair share of taxes.

Before Holtz-Eakin began his second career as a salesman for Republican economic policy, however, he actually was a serious economist. In 2004, Holtz-Eakin served as Director of the Congressional Budget Office, and he was asked to analyse the impact on the federal budget of eliminating the unconstitutional Defense of Marriage Act (DOMA) and extending marriage equality throughout the nation. According to the top Republican economist, opposition to marriage equality cannot be squared with the GOP’s supposed devotion to deficit reduction, as marriage equality slightly reduces the deficit:

The potential effects on the federal budget of recognizing same-sex marriages are numerous. Marriage can affect a person’s eligibility for federal benefits such as Social Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals. In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which marital status is a factor in determining or receiving “benefits, rights, and privileges.” In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBO’s usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government.

According to last night’s federal court decision holding DOMA unconstitutional, Holtz-Eakin’s economic analysis is not simply an interesting historic artifact — it’s also a body blow to the forces trying to protect anti-gay discrimination from the Constitution. In defending the law, anti-gay Members of Congress proposed four reasons why they believed excluding gay couples from their constitutional right to marry is somehow justified, among them a claim that DOMA “is justified as an enactment designed to conserve scarce government resources.” Holtz-Eakin’s analysis refutes this claim, and the district court relied upon it in explaining why DOMA must go down.

In many ways, the resurrection of Holtz-Eakin’s days as a non-partisan economist is a metaphor for why conservative efforts to cling to anti-gay discrimination are doomed to failure. The most intriguing line in yesterday’s opinion is when it characterizes DOMA as an attempt to “establish[] an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage.” When marriage equality was nothing more than an idea, conservatives could scare the nation with warnings that gay couples would recruit your children, raise your taxes and destroy your marriage. Now it is a reality in many states — even if the federal government still needs to extend benefits to these couples — and the parade of horribles that anti-gay groups predicted never made it out the gate.

Holtz-Eakin’s memo demonstrates, however, that anti-gay discrimination was doomed even before America got its first taste of marriage equality. Reality leaks through, even if Congress does everything in its power to keep it away.

]]> http://thinkprogress.org/justice/2012/05/25/490487/how-top-gop-economist-douglas-holtz-eakin-helped-slay-doma-last-night/feed/ 0 http://thinkprogress.org/justice/2012/05/25/490352/justiceline-may-25-2012/ http://thinkprogress.org/justice/2012/05/25/490352/justiceline-may-25-2012/#comments Fri, 25 May 2012 11:45:21 +0000 Ian Millhiser http://thinkprogress.org/?p=490352 Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice
• A DC elementary school declared a “Trayvon Martin Day” to teach its students and community about social justice, race relations and to avoid violence.
• The New Jersey legislative black caucus came out against state supreme court nominee Bruce Harris, who is African-American, citing his lack of qualifications: “The nomination of Mr. Harris sends the wrong message — that we can only achieve diversity on the Supreme Court through lowering the bar for qualifications,” said Sen. Ron Rice. “In a state with many distinguished African-American lawyers and judges, nothing could be further from the truth.”
• The Second Circuit held that records relating the the waterboarding of a Guantanamo Bay detainee can remain sealed.
• The Louisiana Senate approved a state constitutional amendment that will make it nearly impossible to pass gun laws in that state if it is fully ratified.
• The Virginia Supreme Court exonerated a man convicted of a 1978 rape, due to DNA evidence.
• And, finally, after Rick Perry’s “oops” of a presidential campaign, his endorsement is now a liability. In Texas.
]]> http://thinkprogress.org/justice/2012/05/25/490352/justiceline-may-25-2012/feed/ 0 http://thinkprogress.org/justice/2012/05/24/490037/even-bush-attorney-general-alberto-gonzales-wont-say-the-affordable-care-act-is-unconstitutional/ http://thinkprogress.org/justice/2012/05/24/490037/even-bush-attorney-general-alberto-gonzales-wont-say-the-affordable-care-act-is-unconstitutional/#comments Thu, 24 May 2012 20:15:17 +0000 Ian Millhiser http://thinkprogress.org/?p=490037 Alberto Gonzales knows something about distorting the law. As George W. Bush’s White House Counsel, he called the Geneva Convention’s protections for wartime prisoners “quaint” and played a key role in authorizing the Bush Administration’s torture policies. As Attorney General, he presided over massive efforts to politicize the Justice Department’s hiring process, infamously delegating responsibility for much of DOJ’s hiring to former Republican National Committee opposition researcher Monica Goodling.

And yet, in an interview on Fox News this afternoon, even he couldn’t bring himself to claim that the Affordable Care Act is unconstitutional:

QUESTION: Some on the right are now saying they are concerned that Chief Justice Roberts is not going to go along with the way they want to see this case come out. They believe he might go with the liberals in a possible decision to uphold the law. As you say, having been the man to recommend him to the high Court to President Bush, what is your anecdotal thought on it?

GONZALES: This is a very hard decision. I almost laugh when I hear pundits say it’s going to go this way, it’s going to go that way, it’s a fairly easy decision. I think this is a very difficult decision.

Watch it:

For the record, it’s not just “pundits” who say that this is an easy case. It’s also iconic conservative judges. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Gonzales’ former boss, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to conservative Justice Antonin Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for the Supreme Court seat President Bush eventually gave to Chief Justice Roberts, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

So the Affordable Care Act lawsuit is not a hard case — it is one of the easiest cases the Supreme Court has heard in years. The fact that former Bush Administration official who devoted much of his career to placing politics ahead of the law isn’t willing to embrace the case against health reform only lends credence to that fact.

]]> http://thinkprogress.org/justice/2012/05/24/490037/even-bush-attorney-general-alberto-gonzales-wont-say-the-affordable-care-act-is-unconstitutional/feed/ 0 http://thinkprogress.org/justice/2012/05/24/489875/oklahoma-lawmaker-loses-push-to-allow-lawmakers-to-carry-a-gun-anywhere/ http://thinkprogress.org/justice/2012/05/24/489875/oklahoma-lawmaker-loses-push-to-allow-lawmakers-to-carry-a-gun-anywhere/#comments Thu, 24 May 2012 18:45:17 +0000 Ian Millhiser http://thinkprogress.org/?p=489875


State Rep. John Bennett (R-OK) being photographed at a 'killing ground'

Oklahoma state Rep. John Bennett (R-OK) thinks a lot of people are out to get him, so he and his fellow lawmakers should be allowed the right to carry a deadly firearm. Anywhere. Including schools:

Oklahoma legislators need to have the ability to carry handguns to defend themselves from angry constituents and others who might carry out death threats and turn public meetings into killing fields, a House member said Tuesday.

“We don’t protect ourselves,” said Rep. John Bennett, R-Sallisaw.

“According to the Constitution, the Second Amendment, I can carry in this building, that building, anyplace I want to go except if I do now I’m going to get in trouble, probably get arrested.

“How many people in here go to public events and public meetings and speak out in public either at the libraries, football fields, schools and places like that?” he asked House members. “Some of you may carry there anyway even though you’re not supposed to. But you probably do it because those are killing grounds. We have provided killing grounds for the bad guys to come and get us.”


For the record, the Second Amendment does not allow Bennett to bring a gun wherever he wants. As Justice Scalia explained in District of Columbia v. Heller, nothing in that amendment prohibits laws “forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

Bennett’s colleagues rejected his proposal by a 55-32 vote, with state Rep. Steve Martin (R-OK) criticizing Bennett’s attempt to “start us down the dangerous path of giving ourselves really unjustified privileges that the average citizen doesn’t have.”

]]> http://thinkprogress.org/justice/2012/05/24/489875/oklahoma-lawmaker-loses-push-to-allow-lawmakers-to-carry-a-gun-anywhere/feed/ 0 http://thinkprogress.org/justice/2012/05/24/489934/amazoncom-becomes-the-eighteenth-group-to-drop-alec/ http://thinkprogress.org/justice/2012/05/24/489934/amazoncom-becomes-the-eighteenth-group-to-drop-alec/#comments Thu, 24 May 2012 17:13:14 +0000 Ian Millhiser http://thinkprogress.org/?p=489934 According to an email ThinkProgress received from the Center for Media and Democracy, one of the leaders of a progressive campaign to push corporations and other funders to break with the American Legislative Exchange Council, online retail giant Amazon.com just announced that it will part ways with ALEC. In the wake of this campaign, ALEC eliminated a task force that pushed voter suppression laws and the so-called “Stand Your Ground” laws that played a significant role in the aftermath of the Trayvon Martin shooting, but the conservative group remains committed to other priorities such as repealing minimum wage laws, eliminating capital gains and estate taxes, and blocking safeguards that protect children from eating rat poison.

Other groups that have dropped ALEC include: Coca-Cola, PepsiCo, Kraft, Wendy’s, Mars, Inc., Arizona Public Service, the National Board for Professional Teaching StandardsScantron, The National Association of Charter School Authorizers, Kaplan, Procter & Gamble, Yum! Brands, five Pennsylvania legislators, Blue Cross/Blue Shield, Reed Elsevier, American Traffic Solutions, Intuit, and the Bill & Melinda Gates Foundation.

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