Lower courts almost overshadow SCOTUS on #gaymarriage and #WarOnTerror

Two big rulings today, from two different appellate courts, each almost as big, relative to the level of the court, as the Supreme Court's cellphone privacy ruling.

First, a federal district court judge in Oregon said the no-fly list is unconstitutional because it violates due process of the Fifth Amendment:

Previously the government has argued that because other modes of travel on land and sea are available, there is no right to travel by air and no need to change the no-fly list procedures.

“Such an argument ignores the numerous reasons that an individual may have for wanting or needing to travel overseas quickly, such as the birth of a child, the death of a loved one, a business opportunity or a religious obligation,” District Judge Anna J. Brown wrote. “A prohibition on flying turns routine international travel into an odyssey that imposes significant logistical, economic and physical demands on travelers.”

Bingo.

Now, Team Obama's likely response, if it loses this case at both appellate and Supreme Court level? Expand this to a no-train, no-bus zone, I'm sure. Given that Dear Leader is a Bushie or worse on privacy rights and the War on Terra, what else would you expect?

More seriously, given that an appellate court remanded this back to district court after saying it was improperly dismissed, I'm sure the Justice Department is working up a tweaked version of the no-fly list, so that The Most Transparent Administration in History™ will make it easy to get their names removed if they are there inadvertently.

Oh, was that not serious enough, either?

And, the first appellate court to rule on the matter says that Utah's gay marriage ban is unconstitutional. The 10th Circuit, in Denver, upheld the district court's ruling.

This is what I'm sure Anthony Kennedy, in his hair-splitting ruling on California's Proposition 8 and the feds' Defense of Marriage Act all of a year ago was hoping to avoid ... a stampede toward gay marriage bans being tossed.

But, it's happening.

Anthony Kennedy — more than ever, the gay rights swing vote

As many expected, but of which one could never be sure until it happened, the Obama Administration officially filed an amicus brief earlier today in the California Proposition 8 appeal before the Supreme Court.

And, the verbal judo is clearly targeted at Justice Anthony Kennedy, who, despite a fairly consistent conservative vote pattern on anything involving business or money, is a moderate liberal on at least a certain amount of civil rights issues.

Here's the heart of the amicus:

The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.” 

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” 

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.” 

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases. (That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996.)

Will Kennedy mind being referenced so directly? Actually, he may be flattered; he's got one of the bigger egos on the court.

That said, will the trick work?

I'd say yes, in part because the Administration narrowly tailored the amicus to the state (pun intended) at hand, rather than going national.

I predict Kennedy votes as part of a 5-4 majority to boot Prop. 8. And, even if the ruling is tailored to California, it will be a precedent of sorts.

Update, March 15: Some indication of how Kennedy may be leaning might be inferred from the Nine giving the Department of Justice speaking time on its amicus brief.

Michael McConnell has a different tack. He notes that SCOTUS could, in the Prop. 8 case, find that the Californians suing to uphold it don't have legal standing. It's actually a strong argument legally.

Meanwhile, per Lyle Denniston and others, it looks like DOMA is toast, toast, toast. Again, Kennedy seems to be leading the charge on killing it in some way, shape or form.

Political briefs - Norquist, DOMA, Utah enviros

First, a falling out between anti-tax zealot Grover Norquist and wingnut Oklahoma Sen. Tom Coburn? So sad. Interesting that Corbin is leaving the door open for some sort of tax increases. Wow.

Second, Speaker John Boehner's defend DOMA firm, King & Spaulding, has quit the project. In turn, former George W. Bush Solicitor General Paul Clement has quit the firm.

Meanwhile, Utah environmentalists and the oil & gas industry are finding room for compromise.

Definitely a News of the Weird day.

Does Obama mean it on DOMA nondefense?

It's a good question indeed. President Obama has walked a tightrope, to put it politely, with defending the indefensible Defense of Marriage Act in federal courts.

That said, new suits in federal court in New York, where there's no recent precedent on gay rights, forced his hand — and he let his hand be carefully forced.

First, the nondefense applies only to Section 3 of DOMA, to be technical. And, not even fully to that.

Jonathan Turley does a good job of both legal and political parsing of the announcement and says, "It's pretty much a political decision." Having had time to read more since this afternoon, I'd tend to agree.

The more obvious explanation is that it didn't feel it could politically oppose DOMA before the midterm elections. I found Holder's statement to be rather forced and unconvincing. ...

Everyone that I've spoken to believes this decision was motivated by political considerations and not legal considerations. Eric Holder has proven an extremely political attorney general, much in the same way as the Bush attorneys general. His position not to prosecute torture, his decision to defend DOMA, and his prior decisions on DOMA were all driven by political considerations in the view of his critics. So I think that's what the motivation is.

And, although he just comments in passing as a first draft, looks like Greenwald's skeptic meter was left idling at the curb on this one. I mean, in light of Turley's comments, and as much as Greenwald has been skeptical of Obama and Holder before, there's a fair amount of wishful thinking on his part, perhaps.

Now, Turley notes, rightfully, that this is better than nothing.

But, a lot better? Well, maybe not.

Meanwhile, Greenwald has now fully addressed the Holder/Obama decision. And, basically, he expands on his defense of Obama on DOMA. And that's despite mentioning how Obama has politicized other civil liberties issues! I know this is a hugely personal issue to you, Glenn, but read Jonathan Turley, then take off the blinders.

So, the claim of Lisa Hirschman in this other Salon story, that Obama's setting a trap for the GOP? It rings hollow; if anything else, he's setting a trap for people who don't parse his words, and who aren't well-informed gay rights activists.

Obama Admin getting more serious on gay rights?

The Obama Administration has now made a federal court filling AGAINST the Defense of Marriage act, even while a previous amicus brief in favor of it works through the system.

Massachusetts sues feds over DOMA – OK not great

YES! Much better than the California lesbian couple who didn’t get married before Proposition 8 was upheld by the California Supreme Court, a Commonwealth of Massachusetts suit against the Defense of Marriage Act is likely to get legal standing.

The lawsuit argues that the DOMA, which was enacted in 1996, precludes same-sex spouses in Massachusetts from a wide range of protections, including federal income tax credits, employment and retirement benefits, health insurance coverage, and Social Security payments.

Federal courts who are not too reticent about refusing to give individual civil plaintiffs standing aren’t likely to bump a state on a constitutional issue.

BUT… but… but…

There’s a downside. Massachusetts is deliberately avoiding raising the “full faith and credit clause” of the U.S. Constitution in challenging DOMA:

The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" for the purpose of federal law as "a legal union between one man and one woman as husband and wife." It does not challenge the constitutionality of Section 2, which provides that states are not required to recognize same-sex marriages performed in other states.

Instead, the challenge is only to the conservative-beloved 10th Amendment.

Read, definitely read, the whole thing. See if you think it’s the right, narrowly-phrased, legal strategy and whether it stands a chance at the Supreme Court.

My angle is that if SCOTUS wants to slap down the state of Massachusetts on this issue, it will find a way to do so, no matter how narrowly tailored the suit is. And, the suit, if won, would theoretically apply only in Massachusetts, and not guarantee people married in Massachusetts would be considered married if they moved elsewhere.

Taking DOMA orders from Barney Frank

That would be LawDork blogger Chris Geidner, who, like Rep. Frank says, in Salon, that that vicious and stereotyping brief Obama’s Justice Department wrote in defense of the indefensible Defense of Marriage Act actually isn’t that bad.

Compared to what? The Bush Administration whose DOJ never actually got to write such a brief?

You must factor in that, per his bio, Geidner is a Democratic blogger. He’s worked, either paid or as an intern/volunteer, the White House, the Senate and two Ohio attorneys general. So, he’s not disinterested in maintaining a Democratic Party line.
javascript:void(0)

Barmey Frank supports Obama anti-gay DOMA brief

WTF? But he does, right here on his Congressional website. And you people wonder why I advocate for Green Congressional as well as presidential candidates.

Obama wants gay couples at back of bus

Yessir, Just.Another.Politician.™ doesn’t really extend civil rights to gay marriage; in fact, his administrastion officially opposes that idea.

Obama’s Department of Justice, per the link, is officially on record in a federal suit as supporting the Defense of Marriage Act, one of the more craven bill-signings of the Clinton Administration, and officially rejecting the idea that the “full faith and credit” clause of the U.S. Constitution requires states to recognize each others’ marriage laws, regardless of gender and sexual orientation of the two married persons.

Meanwhile, the Obama Administration is being chickenshit in another way, insisting that Congress take the lead in overturning DOMA. On environmental issues and more, we’ve seen that this is The One’s M.O. No leadership from this White House.

John Aravosis at AmericaBlog, already excoriated over other issues by pseudoliberals at Kos for taking Obama to task, adds that Obama is lying in other ways, too, namely, claiming that DOMA doesn’t deny gay partners any equality under the law.

And, at another link, which itself has a link to the Obama DOJ official brief, we see that Obama says DOMA saves money, is consistent with equal protection under the law, and more, including claiming the right to marriage is not a fundamental right.

The Team Obama illogic is stunning.

First and foremost, if marriage is not a fundamental right, then why do we even have a Defense of Marriage Act? And, why are you so worried about protecting this act? Even to the point of using conservatives' rational-review scrutiny standard?

Yet another reason not to vote for Obama

One that many Californians could agree with: His opposition to gay marriage.

Oh, and yes, the Defense of Marriage Act is unconstitutional. That said, I can understand the leeriness of a gay set of spouses from Massachusetts in challenging the law, especially given today’s SCOTUS.

And, it’s a high degree of ostrich-itis, given the amount most Americans move, to say states should decide their marriage policies, the implication being they should decide them as if DOMA were in fact constitutional.

And, it’s more than his opposition to gay marriage that’s at stake.

Obama opposes gay marriage, but opposes California’s constitutional amendment to ban gay marriage.

Social conservatives, if they haven’t already, can claim this is like many Democrats saying they’re personally pro-life but still support abortion rights.

And, those social conservatives would be right.

From my point of view, the issue is that Obama could and should make such a move himself. It would a reasonable stance for him to take.

Instead, between his actual beliefs, and now, wanting to junk DOMA, he looks like he’s either confused or a panderer, and it wouldn’t be the first time for him to either one of those.