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Law, Unwrapped: What The Supreme Court’s Decision To Hear DOMA And Prop 8 Means

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O.K., so as anyone with a pulse by now knows, the Supreme Court has just agreed to hear appeals on two marriage cases. Should we be getting ready for a blockbuster decision, either way? Maybe.

Let’s look at what the Court did here. The Justices have been sitting on a pile of petitions relating to marriage equality, and given the different issues they pose, it’s no wonder they didn’t rush to make their decisions. There was a simpler course of action – one I expected SCOTUS to take – and a messier one. The Justices embraced the mess.

The challenges to the Defense of Marriage Act, aka, DOMA, are the simpler ones, more easily decided on relatively narrow grounds that would have left the big issue of whether gays and lesbians have an equal right to marry for another day. A bunch of cases alleged that section 3 of DOMA violates gay and lesbian couples’ right to equal protection under the law, since it treats married same-sex couples differently from married gay couples. Simply put, same-sex marriages don’t count for federal purposes.

The case the Court took for review, Windsor v. United States, illustrates the point well enough. Edith Windsor, now in her eighties, was in a forty-year relationship with Thea Spyer. The couple finally married in 2007 in Canada (a marriage that was recognized in New York, even before that state began issuing its own marriage licenses a couple years ago). But when Spyer died a couple years later, Windsor was hit with a major bill: $363,000 in federal estate taxes. Had Spyer’s spouse been a man, her bill would have been…zero. That’s because an exemption to the estate tax allows spouses can pass their estates to each other, tax-free. Unless, of course, the marriage involves a same-sex couple. Agreeing with every other federal court to consider the issue, the federal court of appeals for the Second Circuit (New York and a couple of neighboring states) found that this disparate treatment was a clear violation of Windsor’s right to equal protection under the law. It’s hard to argue with that.

DOMA is an unprecedented incursion into a matter historically left to the states – Who is qualified to marry whom? So overturning it should appeal to Justice Kennedy, who will probably return to the role of swing Justice he temporarily ceded to Justice Roberts in the health care decision this past summer. As NYU Law’s Kenji Yoshino has memorably stated, Kennedy likes two things: states rights and gay rights. In fact, he wrote the majority opinions on the two big decisions affecting our community (Romer v. Evans and Lawrence v. Texas), and he did so using sweeping reasoning and rhetoric that certainly provides some reason for optimism here.

Justice Kennedy won’t have to do a heavy lift. It’s hard to justify this particularly pernicious provision of DOMA (the other substantive section has to do with interstate recognition of same-sex marriage, and it’s not at issue in this case), and I’m guessing the Court will find that it doesn’t even have a rational basis – the absolute minimum standard that a law has to meet to pass constitutional muster.

(The Court might also accept the Windsor court’s invitation to put the law under a greater degree of scrutiny; indeed, one reason the Court chose this particular case might have been to settle the issue of whether gays and lesbians constitute a “suspect class” – a minority that is entitled to special protection under the law. Surprisingly, the Supreme Court has never decided this issue, one way or the other.)

If DOMA falls, it’s big news, but not cataclysmic. The states would still be free to decide whether they want to recognize or ban same-sex unions – or to craft some kind of compromise, such as the trendy civil union or the by-now hoary domestic partnership. It’s just that the federal government won’t be able to ignore what the states decide. Same-sex couples legally married in their home state would “just” be entitled to the cavalcade of benefits that rain down on other married couples.

The Court could have, perhaps should have, stopped there. And the Ninth Circuit, which is the federal appellate court that decided the Prop 8 appeal (in the case now captioned Hollingsworth v. Perry, about its third name so far), took steps to keep this flammable material away from SCOTUS by setting its decision that Prop 8 was unconstitutional in the thinnest soil it could find: When same-sex couples can already marry in a state (which was the case in California when Prop 8 was passed, rescinding that right), then taking that right away and replacing it with something that’s all but marriage – comprehensive domestic partnership status – can only be explained by irrational dislike (“animus” is the word often used) of gay and lesbian couples. And that’s not a permissible ground for discrimination under existing Supreme Court precedent.

But the Court would have none of this narrow-casting of the issue. In its order granting review of the case, SCOTUS said it wanted argument on the issue the Prop 8 proponents had offered up: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” That’s not quite as broad as deciding whether gays and lesbians have a fundamental right to marry (someone of their own sex, please!), but it’s close. So does that mean this case is really where the action is? Has DOMA been shoved into the wings?

I don’t know. For the Court also asked the Hollingsworth parties to brief the important constitutional issue whether the Prop 8 proponents even have standing to appeal – a question that the proponents, who asked the Court to take the case in the first place, surely don’t want to deal with. Courts aren’t debating clubs, and the parties who bring suit must have a concrete stake in the outcome. Maybe the Court will find that the proponents have no such stake. If so, then the first appeal wasn’t proper, either, and this case would likely unspool all the way back to what the lower court decided – that the parties involved in the case, and perhaps only those parties, have a right to marry. Yes, it’s possible that the Prop 8 drama of the past few years will come to very little after all, at least for now.

There are also standing issues in the DOMA case, but given the number of parties with a shot at standing, I’m guessing the Court will find that someone has standing – Edith Windsor herself, out all that money, sure seems like a good candidate. (If you’re interested in reading more about the standing issue, read this SCOTUSblog post by the reliably incisive Lyle Denniston.)

I’ll confess that I don’t know what the Court’s going to do with this unruly ganglion of cases. But the stakes just went way, way up, as did the degree of difficulty of legal analysis.
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.

He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.

John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.

 

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OPINION

Trump Brags NYPD Showed Him ‘Love’ at Slain Officer’s Wake

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Donald Trump continued to use the killing of a New York City police officer as a campaign opportunity, declaring on Friday that mourners showed him “love” at Thursday’s wake, while he attacked Presidents Joe Biden, Barack Obama, and Bill Clinton for not attending the event or calling the victim’s family.

“I support the police, I would say at the highest level by far, maybe double or triple,” Trump told Fox News’ Brian Kilmeade from his private jet (video below).

“And they knew that, that’s why when I walked in to that funeral parlor, it was like love,” Trump said, emphasizing the word “love.”

He said the three Democratic presidents, in New York City Thursday for a fundraiser, “didn’t even call the family,” before saying, “I’m not sure they’d take his call.”

There is no indication the three Democratic presidents had been invited, and a New York City police union had warned NYC Democratic leaders to not attend the funeral.

Kilmeade pointed out that two police commissioners greeted Trump, and the ex-president replied, saying, “it was almost affection in both cases.”

Trump went on to say, “the most important day in the history of our country is going to be November 5, that’s Election Day, it’s going to be November 5, that is the most important period of time, it’s the most important day in the history of our country.”

READ MORE: ‘Hunger Games at NBC News’: New McDaniel Revelations Have ‘Enraged’ Staffers, Report Says

He also told Kilmeade, “this country is going to hell. Our country is not respected any more, I say it in my rallies and my speeches, we’re a nation in decline.”

On Thursday, Trump attended the wake of the slain NYPD officer, Jonathan Diller. Before leaving, Trump, facing 88 criminal felony charges spoke to reporters, offering up some of his campaign rhetoric:

“We have to stop, we have to get back to law and order. We have to do a lot of things differently because this is not working. This is happening too often.”

Trump was invited to the wake by Republican Nassau County Executive Bruce Blakeman, according to The Daily Beast, which called out the ex-president for “hypocrisy.”

“He champions Jan. 6 cop-beaters one day and then pretends he cares about law enforcement the next,” wrote The Daily Beast’s Michael Daly. “Trump was apparently counting on everybody forgetting the 140 officers the DOJ says were assaulted at the Capitol by people he calls ‘patriots’ and ‘hostages.'”

Watch a short clip below or at this link.

READ MORE: Lawmaker Slammed for Claiming College Basketball Players Were Actually ‘Illegal Invaders’

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OPINION

‘Have to Get Back to Law and Order’: Trump Declares at NYPD Officer’s Wake

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Donald Trump attended the wake of the slain New York City police officer who was shot and killed while conducting a traffic stop this week. The four-times indicted ex-president demanded America “get back to law and order,” barely days after a New York judge imposed a gag order in the case where the presumptive Republican presidential nominee faces 34 felony counts for “falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election,” according to the New York District Attorney.

That damaging information included hush money payments to several women including an adult film actress.

“We have to stop it,” Trump said Thursday, speaking before the cameras about crime as he stood under an umbrella in front of police officers. “We have to stop, we have to get back to law and order. We have to do a lot of things differently because this is not working. This is happening too often.”

“Police are the greatest people we have. There’s nothing and there’s nobody like them. And this should never happen,” Trump said as he lamented how repeat offenders “don’t learn because they don’t respect.”

READ MORE: Trump Campaign Says It Will Deploy ‘Soldiers’ to Polling Places

“We’ve got to toughen it up. We’ve got to strengthen it up. It should never be allowed things like they shouldn’t take place and to take place so often,” said Trump, who is out on bail and currently faces 88 felony charges after three were dropped.

The Trump campaign announced that the ex-president had been invited to attend the wake.

“President Trump is moved by the invitation to join NYPD Officer Jonathan Diller’s family and colleagues as they deal with his senseless and tragic death,” Trump campaign spokesperson Karoline Leavitt said, according to The Daily Beast.

The Associated Press added that “Trump has deplored crime in heavily Democratic cities, called for shoplifters to be shot immediately and wants to immunize police officers from lawsuits for potential misconduct. But he’s also demonized local prosecutors, the FBI and the Department of Justice over the criminal prosecutions he faces and the investigation while he was president into his first campaign’s interactions with Russia.”

“He has also embraced those imprisoned for their roles on the Jan. 6, 2021, insurrection at the U.S. Capitol, when a mob of his angry supporters overran police lines and Capitol and local police officers were attacked and beaten.”

Earlier on Thursday NBC News reported on Trump’s mischaracterizations of crime.

“Surging crime levels, out-of-control Democratic cities and ‘migrant crime,'” the network noted. “Former President Donald Trump regularly cites all three at his campaign rallies, in news releases and on Truth Social, often saying President Joe Biden and Democrats are to blame.”

READ MORE: ‘Hunger Games at NBC News’: New McDaniel Revelations Have ‘Enraged’ Staffers, Report Says

“But the crime picture Trump paints contrasts sharply with years of police and government data at both the local and national levels,” NBC added. “FBI statistics released this year suggested a steep drop in crime across the country last year. It’s a similar story across major cities, with violent crime down year over year in Chicago, New York and Washington, D.C.”

Watch Trump’s remarks below or at this link.

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OPINION

‘Hunger Games at NBC News’: New McDaniel Revelations Have ‘Enraged’ Staffers, Report Says

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The backlash from NBC News’ hiring of Ronna McDaniel is not over. New reporting from Puck, CNN, and The Washington Post reveals the considerable efforts from top NBC and MSNBC brass to recruit, hire, and support the former RNC chair who promoted false election claims, was allegedly involved in helping Donald Trump’s efforts to overturn the 2020 election results, and refused to say Joe Biden had been elected fairly.

Staffers at NBC News and MSNBC were outraged at McDaniel’s hiring, but new details about behind-the-scenes efforts reportedly have increased that outrage.

Some critics are either calling for resignations of NBC News and MSNBC  leadership, or questioning how long they can ride out the mess.

“What is Brian Roberts going to do?” CNN‘s Oliver Darcy asks. “The Comcast boss is watching an unceasing five-alarm fire rage at 30 Rock, scarring the reputation of NBC News and threatening to consume multiple parts of the Cesar Conde-run NBC Universal News Group.”

“Conde has lost control of his organization, prompting industry insiders to wonder how he continues to remain in his role as chairman of the NBC News Group. In the words of one veteran media executive I spoke to Wednesday, ‘It’s inconceivable that he should,'” Darcy writes, saying Conde’s actions and those of his top executives have “hosed gasoline” on the scandal.

READ MORE: Lawmaker Slammed for Claiming College Basketball Players Were Actually ‘Illegal Invaders’

That scandal involves these revelations from Puck’s Dylan Byers, who reports, “bringing McDaniel to 30 Rock had been part of a nearly two-month-long effort that was spearheaded by Budoff Brown and her boss, NBC News President Rebecca Blumenstein, with buy-in from Conde and his deputies at both NBC News and MSNBC.”

“Rashida Jones,” he adds, “the president of MSNBC, was very interested in having McDaniel appear as a contributor on her network, as well.”

But this bombshell has drawn a good deal of attention. Noting how Chuck Todd led off the very public pushback against the hiring of McDaniel, Byers reports, “On Sunday, Budoff Brown reached out to McDaniel’s aide and former chief of staff at the R.N.C., Richard Walters, to see if there were any friends or colleagues who could speak up on her behalf.”

“The two sides also discussed having these folks call attention to what they saw as a double standard—after all, this was the same network that was turning Psaki, a former Biden White House Press Secretary, into a Maddow-adjacent prime time star. Walters later assured Budoff Brown that they’d been able to advance conservative pushback on social media against Todd, specifically, and that this might give NBC News some cover, for which Budoff Brown thanked him.”

CNN, pointing to those details, adds, “staffers inside NBC News are enraged at the fact an executive would have engaged in such behavior.”

Former Chicago Tribune editor Mark Jacobs, who now writes about politics and the media, called for the firing of Jones, Blumenstein, and Budoff Brown.

Other critics are expressing concerns on multiple fronts.

READ MORE: Ronna McDaniel Is Just a ‘Normal’ Person Who ‘Never Denied the Election’ Says Hugh Hewitt

“It’s like the hunger games at @NBCNews. Every day new, horrible stories of journalism & corporate malpractice. Every single one of these managers must go,” observed Jennifer Schulze, a media critic who was a Chicago Sun-Times executive producer, WGN news director, and adjunct college professor of journalism.

She also highlights a Washington Post report that ropes NBC Nightly News anchor Lester Holt into the mess.

“Every @NBCNews exec who thought hiring a reputed liar & phony elector co-[conspirator] needs to resign or be fired,” Schulze says.

“The @NBCNews managers who recruited & signed an election denier should be out the door, too,” she adds. “Not only was it downright offensive to hire Ronna, it was journalism AND corporate malpractice.”

Pointing to his newsletter, former Obama senior advisor Dan Pfeiffer writes, “NBC’s ill-fated decision to hire Ronna McDaniel is a story of a media outlet unwilling to accept the ways Trump changed politics, but it’s also one of the best arguments for Dems need to build our media ecosystem ASAP.”

READ MORE: Comer Refuses to Investigate Trump Family Member Over ‘Influence Peddling’ Allegation

He calls McDaniel’s hiring “evidence” the media has “yet to accept the reality that this is not a normal election between a Republican and a Democrat.” And adds, “An [industry] that prizes objectivity above all else, is incapable of accurately covering an election where one candidate is a normal politician and the other is an insurrectionist. Many in the media would rather stumble into autocracy than take a side.”

Veteran journalist and Sirius XM host Michelangelo Signorile observes, “We couldn’t have asked for a better situation to shine a bright light on the corruption of the corporate media—and its impulse to legitimize MAGA extremism and lawbreakers for profit—than NBC’s hiring former RNC chair, election denier, and Trump enabler Ronna McDaniel.”

And he warns, “The forces that made the coup-plotting former RNC chair a paid contributor are still shaping news and information about this pivotal election.”

 

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