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Saturday, June 28, 2003
Did Lawrence establish "Gay Rights"?
Tony AdragnaI was disappointed to see the headline "Privacy, Gay Rights and the Supreme Court" on today's WaPo letter page. That verbiage "misapprehends", to borrow from Justice Kennedy, and in the same way the Bowers majority did, what this legal battle has always been about for gays.
That the opposition has at the same time always framed the claim as a want for some sort of special protection accorded "Gay Rights" is frustrating. This would be the same as framing a challenge to the new campaign finance laws as a want for protection of "Republican Rights" or "Democratic Rights", rather than recognizing a 1st Amendment "Free Speech" claim. It would be like framing a "Free Exercise" claim as a search for "Catholic Rights" or "Bhudist Rights". I could go on...
At least one letter writer got it correct
While I salute the Supreme Court's decision in Lawrence v. Texas, I am dismayed to see it being applauded solely as a victory for the gay community. The decision is a victory for human rights, for both gays and straights...Amen!
Friday, June 27, 2003
Was Lawrence an application of "strict scrutiny"?
Tony AdragnaPhil Carter says yes. Slate's Dahlia Lithwick asks, "which fundamental right [Kennedy's] privileging," [n.b. if the law in question interferes with "fundamental rights"[i.e. "privacy", "liberty", "free expression"], then "strict scrutiny" is the proper test]. And Lawrence Solum, paying attention to Kennedy's language, comments
Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me.But did Kennedy actually apply "strict scrutiny"?
I think Scalia is [gulp], pace Solum, correct on this point.
It looks to me like Kennedy did the same thing he did in Romer. In a December '02 entry discussing that decision, I wrote
[T]he language Kennedy uses — begining with his citation of the first Justice Harlan in Plessy, to "the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected", and "conclud[ing] that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" — I get the impression that he would be perfectly willing to use the stricter test in a "sexual orientation" case where it might apply. Such a case is on the calendar this term...Kennedy applied the "rational basis" test in Romer despite strong language pointing to an "inherently suspect" classification in the Equal Protection context.
Now we get to Lawrence — that "case where [strict scrutiny] might apply." Why I thought [at the time, "inherently suspect" classification] Kennedy might be willing to apply "strict scrutiny" turns out not to be the case. However, applying "strict scrutiny" to a "fundamental rights" claim in Lawrence is exactly what Kennedy's opinion seems to do anyway.
But, Kennedy only goes half way. Just as in Romer, all of Kennedy's language points to "strict scrutiny" as the proper level of review — all of it except where he holds
The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual ’s personal and private life.[emphasis added]Not "compelling interest", the test under "strict scrutiny", but the "legitimate interest" test of "rational basis" review.
What's going on here?
Well, I think that what's going on — as I argued in my discussion of Romer — isn't that Kennedy is rejecting "strict scrutiny" as the proper test. Rather, he's saying: Look, folks, this law doesn't even pass the easiest test — 'nuf said.
So, from what I can tell, we're still waiting for Kennedy to apply "strict scrutiny" to a case involving homosexuals. I think he eventually will, and there are two blips on the radar that will present the opportunity: a challenge to "Don't Ask-Don't Tell" will only overcome deference to the Executive if "strict scrutiny" is applied; a challenge to State & Federal DOMAs will need "strict scrutiny" to overcome deference to the "traditional institution".
In any event, stay tuned for more uncharitable intemperance from Brother Scalia...
Thursday, June 26, 2003
Does Lawrence Spell the end of "Don't Ask - Dont Tell"?
Tony AdragnaPhil Carter thinks "it's likely that this ban [on homosexuals in the military] will be struck down as unconstitutional" as a result of Lawrence. I agree, but I've a added take on why that is.
The Executive may claim that today's decision only strikes UCMJ Article 125 sodomy prosecutions, but doesn't preclude the Executive discharging homosexuals on other grounds. Indeed, that's exactly what's been happening.
It's long been difficult to show the court that the military's central judgement — that the mere presence of openly serving gays is detrimental to "good order & discipline" & "unit cohesion" [or, as was argued in a brief for a friend mine, the problem of "anticipated discomfort of others." ]— is not just flawed, but flawed in fact.
But now we've got good evidence from the experience of other countries that — notwithstanding objections from military leaders that sounded exactly like the objections from leaders of the U.S. military — have opened their militaries to homosexuals
“The best way to describe it is it was a non-event. The world didn’t come to an end. People just went about their business.”If, as I suspect is true, there's a willingness on the part of this court to look at the jusriprudence of other High Courts and the experiences of other nations — whether or not that's a good thing is another question — that may be more fatal to the military's ban on homosexuals than is the decision in Lawrence...
Supreme Court Overrules Bowers — Whoda Thunk It...
Tony AdragnaMy own prediction was
... 6 - 3 to overturn the convictions, and 5 - 4 on overruling Bowers...And that's exactly the result in today's decision in Lawrence et al v. Texas.
Prior to making that prediction, I had always argued that the better rationale was based on the Equal Protection Clause. Making the argument that since such laws as the one in question here would not withstand a privacy claim by heterosexuals, then requiring equal treatment of homosexuals would mean the failure of sodomy laws. Basically, I argued for the opinion Justice O'Connor delivered today.
But, after having read much of what Glenn has written on the subject, I changed my mind. And, after reading Justice Kennedy's opinion today I'm even more convinced that this was the correct way to go in overruling Bowers — not finding a "fundamental right" to engage in sodomy, but rejecting the court's reasoning on exactly what was at stake in the earlier case.
What was at stake in the earlier case — indeed, the claim that Hardwick pressed, notwithstanding what was written on a "fundamental right" to engage in "homosexual sodomy" the regulation of which must survive "strict scrutiny" — was the basic right to be free from the State's coercive use of police powers where the State has no interest in invading one's privacy. [Update: a follow up post to my prediction: "I suspect [the court] will [decide] that the State has no interest in regulating the private sexual conduct of any consenting adults"...]
That Scalia still wants the court to address the question as it was "misapprehended" then only shows that Scalia still wants to misapprehend the question presented. But that's not all — Scalia seems to even fail to be able read every one of Lawrence's holdings for exactly what they are: Direct responses to every one of Bowers' holdings.
Bowers held: "(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy"
For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement—“The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . ,” 478 U. S., at 190—discloses the Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more farreaching consequences, touching upon the most private human con-duct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
Bowers: "(b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. "
(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code, Planned parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation’s laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857.[n.b. Kennedy offers a good rebuttal here to the claims that overturning sodomy laws must also mean allowing beastiality — that claim is only true if you figure that animals are capable of consenting to sex]
Lawrence's (c) addresses the current state of law & precedent, finding even less support for upholding sodomy laws.
Bowers: "(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance.
(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result.
(e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. "
(d) Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.Scalia simply doesn't agree with those answers...
Wednesday, June 25, 2003
Will VehrsI'm back at QP South Headquarters after a horror show Friday. The only saving grace for the whole day was that I never set foot in a store. There'll be more horror today as I begin the annual torture ritual known as Christmas decorating. Tony, let the competition begin!
Have you ever tried to start a Thanksgiving tradition only to have it fall so totally flat that it will instead become a holiday howler?
I gathered the clan around the computer to show them the Thanksgiving Caption Contest results. Despite JulieC's snide little comment in The Refuge, I was pretty sure I had a winner to show off for family and friends.
Well, did I ever misread Dodd ... again. Not only was I not a winner, but my entries were buried in an avalanche of submissions from the usual suspects and some new chronic wannabes. "Who's Vincent Giannini? Who's Charles Austin? They have way more entries than you, Uncle Willie." And, of course, I'd forgotten the subject matter of what few entries I had submitted. "Who's Rags? What's this about strap-ons? Should the kids be looking at this?" I quickly ended the first and last annual Thanksgiving Caption Contest reading.
Well, at least there were good, discriminating entries from The Refuge ... what a great treat to see Tony join in the fun!
I'm going to start decorating and try to get caught up on what's happening in the world. I can't just let the pundits explain it to me tomorrow ....
This Isn't "The Road to Oceania"
Tony AdragnaWilliam Gibson's NYT op-ed contribution notes
In the age of the leak and the blog, of evidence extraction and link discovery, truths will either out or be outed, later if not sooner. This is something I would bring to the attention of every diplomat, politician and corporate leader: the future, eventually, will find you out. The future, wielding unimaginable tools of transparency, will have its way with you. In the end, you will be seen to have done that which you did.I don't think that "deliriously multiple viewpoints" is necessarily a bad thing — much worse would be too few voices. "[M]isinformation, disinformation, conspiracy theories" were ever present prior to the information revolution, as was "a quotidian degree of madness." I'll gladly put up with all of those things for what the information revolution provides folk like me: Access to information.
This democratization of "'Orwellian' scrutiny" that Gibson mentions earlier in the piece isn't so much about a "[l]oss of traditional privacies" — liberal societies will protect those individual privacies that need protection, and will, in the end, do so notwithstanding "national security" concerns. In my opinion, this is mostly about democratization of access to information that was previously much easier for the "diplomat, politician and corporate leader" to keep closely held. This transparency in liberal societies makes it harder for those leaders to do what they oughtn't have been doing behind closed doors in the first place, and couldn't have done if the public caught a whiff.
And with a better informed public ought come a more discerning one, too, making easier the job of distinguishing the propogandists, liars and whack-jobs from people who have something of value to bring to the public.
I don't see "stranger problems." I see a better solution to age old problems...
Widespread Looting Confirmed, But...
Tony AdragnaWaPo columnist Al Kamen's "In the Loop" is always good for a chuckle, and today's entry — "Many Hands Make Light Fingers" — is no exception
Law and order Republicans on the Senate Rules Committee courageously voted yesterday against stealing furniture from the Capitol. It was even a unanimous vote, no abstentions.So, on top of extortion [contribute to my campaign, or I won't be friendly to your cause], bribery [vote for me and I'll put money in your pocket], and various other types of [mis]conduct that would be considered felonies, misdemeanors and torts if done by other than a legislator [and sometimes even then], now we can add what's properly considered theft in any case.
And, since some of those items are "historical artifacts", there may even be violations of international law regarding the protection of such objects...
Pakistani Muslim Pleads for Help Against Islamic Radicals Author Zahir Janmohamed writes of "Radical Muslims Killing Muslims"
[I]n Pakistan, many Islamic radicals hold equal (and sometimes more) animosity toward dissenting Muslims (particularly Shiites) than toward westerners. The Sipah-i-Sahaba have even killed many of their own Sunni clerics, because the clerics rejected their divisive agenda. Often, implementing a skewed understanding of Islamic sharia (religious law) -- and not hatred of the West -- is their prime motivation.And he's got some critical words for Shiites
This does not absolve Shiite Muslims of guilt. Many Shiite clerics have irresponsibly inflamed sectarian tension by denouncing beloved Sunni icons or, worse, endorsing retaliation. But a Muslim group that condemns violence when Islamic radicals kill Christians, then remains silent when Islamic radicals kill Shiite Muslims, is not a human rights group but a PR firm.I think U.S. policy vis a vis Pakistan is a morass through which I'm happy not having to trod...
Monday, June 23, 2003
More Inane Hand Wringing... Again...
Tony AdragnaJim MIller's criticism of Seumas Milne's current piece in The Guardian — "The right to resist" — doesn't do justice to Milne.
Milne's problem, as I've noted before, is that he, for some reason, won't recognize the bright line between terrorism and warfare. In fact, Milne argued that the Anglo-American bombardment of Afghanistan equals terror administered by a state — civilians are terrorized in warfare.
Milne doesn't explicitly accuse the Anglo-American coalition of terrorism in his current piece, but it's certainly implied — just read Milne's description of the interaction between coalition troops and resisters... "massacres of demonstrators", "spasmodic beatings and killings of innocents by coalition soldiers"...
Milne knows where his arguments lead. He knows what happens with his misrepresentations of fact & ommissions of information crucial to to determing whether resistance is of a means that comports with international law — they become justification for the intentional killing of innocents by "popular resistance movements", and a charge of "terrorism" whenever an army unintentionally kills civilians while prosecuting legitimate targets.
Just listen to apologists for Palestinian terrorism...
Sunday, June 22, 2003
Et tu, George?
Tony AdragnaGeorge Will is worried: The Bush Doctrine At Risk
[O]vershadowing the military achievement is the failure -- so far -- to find, or explain the absence of, weapons of mass destruction that were the necessary and sufficient justification for preemptive war. The doctrine of preemption -- the core of the president's foreign policy -- is in jeopardy.[added emphasis]The Bush Doctrine is certainly in trouble, but that doesn't mean that "[t]he doctrine of preemption ... is in jeopardy." The presence of WMD as "the necessary and sufficient justification for preemptive war" was never generally accepted anywhere but in this administration's national security policy. That's ever been the problem.
The "doctrine of preemption" has traditionally found its justification in the context of "imminent" threats. I've not yet read a serious argument against such an application[critics of Israel's raid on Osirak aren't by me taken seriously]. The only criticism of the doctrine as it's been historically understood has come from the Bush administration and defenders of the war in Iraq as a justified "preemptive" war. The Bush Doctrine wants to expand the scope of preemption, so that it reaches beyong "imminent" threats and gets at "emergent" threats. This formulation of the doctrine of preemption was "in jeopardy" from its inception.
Even the administration recognized that its formulation of a preemeption doctrine rested on an unsure footing. That's why we went through the diplomatic theatre of trying to get a Security Council resolution authorizing force — a move I supported as the best way to proceed. It's also why we went through the domestic political theatre of trying to convince the American public of linkages to terrorism.
I think both Iraq's defiance of the UN and the linkages to terrorism sufficient to provide justification. But neither needed a new formulation of preemption. Indeed, you don't even need any kind of new doctrine to go after threats to international peace & security — justification already exists in principle..
Some say the war was justified even if WMD are not found nor their destruction explained, because the world is "better off" without Saddam Hussein. Of course it is better off. But unless one is prepared to postulate a U.S. right, perhaps even a duty, to militarily dismantle any tyranny -- on to Burma? -- it is unacceptable to argue that Hussein's mass graves and torture chambers suffice as retrospective justifications for preemptive war. Americans seem sanguine about the failure -- so far -- to validate the war's premise about the threat posed by Hussein's WMD, but a long-term failure would unravel much of this president's policy and rhetoric.[added emphasis]I don't need to "postulate a U.S. right" to militarily go after tyrants. I think that every nation has a right — even a moral duty — to respond to such thuggery. Saddam's "mass graves and torture chambers" don't provide for me a "retrosepctive" justification. They were always a justification, notwithstanding the lack of political will — domestically & internationally — to rest on that justification prospectively.
And we needn't accept "on to Burma" as logically following from the argument. "Right" and "duty" aren't the only considerations informing a decision on going to war.
But, George's conclusion the "[u]ntil WMD are found, or their absence accounted for, there is urgent explaining to be done" is absolutely correct. It's not just the current administration that's got explaining to do, though — it's not even just the U.S. that's got 'splainin' to do. And the Bush Doctrine of applying preemptive force to emergent threats is still in jeopardy irrespective the fallout over not being able to find Saddam's WMD.