2013-05-24T15:44:12-04:00 Chris Cassidy http://www.huffingtonpost.com/author/index.php?author=chris-cassidy Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Chris Cassidy Good old fashioned elbow grease. tag:www.huffingtonpost.com,2011:/theblog//3.827205 2011-02-23T14:28:59-05:00 2011-05-25T18:35:25-04:00

Chris Cassidy http://www.huffingtonpost.com/chris-cassidy/ change you can believe in.

At the recommendation of Attorney General Eric Holder, President Barack Obama today ordered the Justice Department to stop defending the constitutionality of DOMA's Section 3, which restricted federal marriage benefits to same-sex couples. The act, which was passed by a Republican Congress and signed into law by President Bill Clinton, has long been anathema to equality advocates. The National Journal broke news of the administration's change of heart this afternoon.

Obama's decision leaves the law on the books, but requires new counsel for parties previously represented by Justice Department attorneys in two challenges to the law still pending in federal courts. Scores of media-hungry, homophobic attorneys are presently salivating at the opening, which may present them the opportunity to defend DOMA's constitutionality before the Supreme Court in due time. New counsel's role will be limited to defending Section 3, as the Justice Department indicates that the remainder of the law should be upheld.

The president's directive is long overdue, but why now? The likelihood that attitudes towards marriage equality have changed substantially in the past two years seems slim, indicating that there may be more at work. With headlines presently monopolized by people-powered uprisings across the Middle East and America's Mid West, perhaps the administration assessed the present moment as one where big news -- like flip-flopping on the constitutionality of DOMA -- would meet scant few eyes, and thus trigger scant few(er) objections.

The announcement arrives just ahead of a March 11 deadline for the administration's position on the level of constitutional scrutiny that the law warrants. In a Justice Department press release, Holder said, "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny." This is a reversal of the executive branch's more deferential view that judges should review DOMA for a rational basis -- a test which DOMA passed, according to the Justice Department. Adam Bonin offers a good primer on the legalese, for wonkier readers.

What happens next? Whoever steps in to defend the law will likely seek a delay of the March 11 deadline their brief on DOMA's constitutionality, which the court should grant. Perhaps month will then lapse until oral argument is presented in the case, and more months will lapse until a decision is announced. Then, whoever loses will seek review before the Supreme Court, where laws targeting homosexual behavior have been struck down, but the Court has refused to reveal what level of review it applied in so doing. Whether the Supreme Court would weigh in on the law's constitutionality requires four of nine justices to favor review.

Yes, the legal world is a byzantine one. But don't be discouraged: the Obama administration's move today is one more step towards the eradication of homophobic laws in our country. As principled, progressive attorneys continue challenging DOMA's constitutionality, they will now be armed with a determination by the United States government that "DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional."]]> tag:www.huffingtonpost.com,2010:/theblog//3.625455 2010-06-25T10:28:03-04:00 2011-05-25T16:55:19-04:00

Chris Cassidy http://www.huffingtonpost.com/chris-cassidy/
That is the question that Washington voters answered with a resounding "no," when they passed the Public Records Act by initiative. The Act is a common-sense law allowing the public to see the petitions circulated by activists that place initiatives on the state's ballot. Among the information disclosed on such petitions are the names of those who sign them, effectively placing before voters the issue of passing or reversing a given state law.

Though it may seem obvious that voters should know who is behind an issue on their ballot, not everyone sees this issue the same way. Protect Marriage Washington -- the anti-equality organization that launched a failed assault on the state's domestic partnership laws last fall -- disagrees. The organization apparently believes that voters are responsible enough to vote on Washington's domestic partnership law, but cannot be trusted to know who is behind the opposition to the law. Despite the hypocrisy of this argument, Protect Marriage Washington took its claim all the way to the U.S. Supreme Court.

After its failed assault on Washington's domestic partnership law, the Public Records Act became the second state law to be targeted by Protect Marriage. Lawyers for the group expressed their client's purported fear of retaliation for referring domestic partnerships to the state's voters. The group argued that the Public Records Act violated the First Amendment, which, they claimed, protects the people who sign petitions putting laws in front of voters from being publicly named.

You read that right: Protect Marriage Washington tried to use the First Amendment not to protect the competition of information and ideas that drives our democracy, but to keep voters from knowing who is behind the issues they vote on.

The Ninth Circuit Court of Appeals did not buy the organization's claims last year, and the U.S. Supreme Court reached the same result in an opinion announced yesterday.

Protect Marriage Washington's fear of public scrutiny was soundly rejected by the Supreme Court in Doe v. Reed. By a vote of 8-1, the justices ended the anti-equality organization's fight to overturn the Public Records Act, validating voters' right to know who is behind the laws that turn up on the state's ballot.

"Public disclosure ... promotes transparency and accountability in the electoral process to an extent other measures cannot," Chief Justice John Roberts wrote for the Court. The justices dismissed the organization's fear of harassment and intimidation, noting that they were supported only by "scant evidence."

During oral argument, attorney James Bopp claimed on behalf of Protect Marriage that those who signed the petition to overturn the state's domestic partnership law would face indignities such as harassment and intimidation, were their names were released. Conservative Justice Antonin Scalia could not swallow the organization's claims. Scalia abruptly interrupted Bopp, telling the lawyer that his arguments were too "touchy, feely."

"The fact is that running a democracy takes a certain amount of civic courage," Scalia informed Bopp. "And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."

Scalia, Roberts and all other justices save one made the right decision. Putting forth bald claims of potential harassment is no reason to hide information about a referendum from public scrutiny.

Perhaps most importantly, the First Amendment is intended to strengthen our democracy by encouraging the dissemination of information and an open discussion about how to interpret that information. Governance is a contact sport that should not allow for having your ideas voted on while you cower from public scrutiny. Washington's voters who passed the Public Records Act understood that, and the Supreme Court's respect for that judgment should be applauded.
]]> tag:www.huffingtonpost.com,2010:/theblog//3.581880 2010-05-19T12:38:22-04:00 2011-05-25T16:30:24-04:00

Chris Cassidy http://www.huffingtonpost.com/chris-cassidy/
In Graham v. Florida, the justices considered the appeal of Terrance Graham, convicted of two robberies committed before he was 18 years old. Despite the Florida legislature's abolition of the state's parole system, a judge sentenced Graham to life in prison, effectively locking him away and throwing out the key. With Florida's appeallate courts refusing to intervene, the U.S. Supreme Court stepped in, ruling it unconstitutional to sentence juveniles to life without parole.

The ruling is a rare and welcome bright spot from the Roberts Court, which is prone to siding with the government and corporations against individuals asserting their constitutional rights. The Graham decision is also a shockingly transparent window into the war of ideals over which the left- and right-wings of the Court are increasingly clashing.

The 5-4 majority was characteristic of the modern Court. Justices Stevens, Ginsburg, Breyer and Sotomayor joined forces against Roberts, Scalia, Thomas and Alito, and swing-Justice Kennedy stepped in to cast the deciding vote. This time, though, his opinion vindicates the rights of the disempowered over the objections of the powerful.

Kennedy's opinion reads like an outline of the hot-button issues in constitutional interpretation. Should the justices ignore evolving standards of decency in favor of the cultural attitudes of the late-1700's? Will the Court shrug past its prior case law and legislate a conservative activist agenda from the bench? Ought the Court disregard foreign law and practice when considering whether a punishment is "unusual"? The five opinions announced in Graham take different tacks on these questions, with Justice Kennedy's opinion for the majority offering a resounding refusal to endorse the conservative-activist position.

The prisoner's claim in Graham was that his sentence violated the Eighth Amendment prohibition against "cruel and unusual punishment." Kennedy's first stop in assessing this claim is the modern understanding of the words "cruel and unusual." He considers the fact that only 129 juveniles are currently serving life sentences without parole nationwide, with 77 of them incarcerated in Florida alone. As Kennedy put it, this makes Graham's sentence "exceedingly rare."

For Kennedy's consideration of "evolving standards and norms" -- something the Court has relied upon for at least a century when considering the Eighth Amendment -- he received a tongue-lashing from the Court's hardcore originalists, who claim to limit any analysis of the Constitution to the understandings of privileged, propertied white men 220 years ago. Writing in dissent, Justice Thomas argues that the modern applications of juvenile life sentences should not be considered, as modern practices were unavailable to the Founding Fathers. Thomas then goes on to argue that the punishment is not "unusual" under the Eighth Amendment because 37 states currently have it on the books. Hypocrisy much?

Thomas' blind leap back to 1791 provoked a pointed reply from Justice Stevens. "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes," Stevens explains in support of Kennedy's opinion. "Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at another time."

The moderates and arch-conservatives next crossed swords on the issue of whether to respect precedent. Kennedy points to the Court's 2005 decision in Roper v. Simmons, in which he again wrote for a 5-4 majority extending the logic of the Eighth Amendment. There, also over conservative objections, the Court struck down death sentences for juveniles. In Graham, Kennedy borrows the Court's neurological findings from Roper that juvenile brain development leaves room for growth in impulse control. Because a defendant's impulse control is likely to improve with maturity, abandoning him to lethal injection -- or in this case, a prison cell with no key -- would be a particularly cruel form of punishment.

Once again, the most conservative justices pounced upon Kennedy's approach to interpreting the law. Thomas again led the attack, writing, "I find it essential to reeaxamine the foundations" underlying the Court's Eighth Amendment jurisprudence. In an affront to stare decisis -- the principle that prior decisions of the Court warrant respect -- Thomas proceeds to rely primarily on the dissents, rather than the majorities, in those decisions that inconvenience his attempt to limit the Amendment.

In another attack on precedent, Chief Justice Roberts seems to invite states to challenge the Court's prior Eighth Amendment decisions. He writes that Thomas' opinion raises "serious and thoughtful questions" regarding the original intent of the Amendment. Then, Roberts says that he only sets aside Thomas' arguments about "originalism" based on the parties' failure to encourage reversal of the opinions Thomas overlooks. State attorneys general eager to keep juveniles incarcerated for life should read this as an express invitation to argue for reversal of 100 years of Supreme Court jurisprudence -- something the conservative justices demonstrated their taste for in a recent campaign finance case.

The last issue of constitutional interpretation over which the justices exchange barbs is the majority's citation to foreign law. The moderate-majority's opinion, in weighing the meaning of "cruel and unusual punishment," considers whether juvenile life sentences are uncommon, or "unusual," worldwide. In imposing life sentences without parole on minors, "the United States adheres to a sentencing practice rejected the world over," Kennedy writes.

Nothing seems to irk the right wing of the Court more than citation to other countries' laws in determining the meaning of "unusual." Thomas attacks the majority's discussion of foreign law, writing that "past opinions explain at length" his objections to the practice. Then, as with his argument about evolving standards of decency, he disregards his objections and engages Kennedy on the international commonality of juvenile life sentences. Thomas argues that other countries may not inflict life without parole on juveniles, but they do not forbid it either. Therefore, Thomas' argument leaps, we should not ban the practice, which -- unlike the rest of the world -- the United States actually engages in.

First dueling over whose definition of decency is relevant, then trading blows over the respect required for precedent, and finally exchanging jabs over citations to foreign law -- Graham v. Florida is a 12-round heavyweight bout over constitutional interpretation. This time, Kennedy sided with the moderates. With sensible determination of our rights hanging by Kennedy's fickle thread, however, it should be clear that progressives ought to be expecting more and better judicial nominations from the president that we helped elect.]]>