Month: June 2013

A Win For Federalism?

That’s how Randy Barnett sees yesterday’s DOMA ruling:

For now, federalism wins out in theory as well as in practice. States are free to define marriage as they wish (subject to Equal Protection and Due Process clause restraints), and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court. So far, this process of federalism has been beneficial to the cause of same-sex marriage in a number of respects, not least of which is the perceived legitimacy of same-sex marriage in states where it has been adopted by legislation or popular initiative. But whether this bodes good or ill for same-sex marriage, it is a visible demonstration that federalism need not be just for conservatives.

How Rick Hills feels that federalism on marriage is a mixed blessing:

Well, now that Windsor has given us the gift of federalism with respect to Fifth Amendment rights, should the Left look a gift horse in the mouth? Or should they welcome a little federalism with respect to marriage and family matters?

I think the answer to the question depends on risk aversion and discount rate. If you are a Lefty with a strong stomach for risk, then you should be no friend of federalism: You should favor the winner-take-all, high-stakes game of having the SCOTUS define “basic civil rights” in family matters in hopes that the votes will break your way. If you are a Lefty with a high discount rate, you will also discount future risks that a future SCOTUS will define “basic civil rights” in a conservative direction and try to nationalize your preferred definition of “basic civil rights” right now with the current Court and not worry about whether encouraging judicial creativity about nationalizing rights will injure your interests down the road.

Drum believes that the Justices don’t really care about federalism:

Taken as a whole, this ruling was as pure a defense of federalism as we’ve seen in a while. So why did all the conservative justices oppose it? Answer: Because no one actually cares about federalism. It’s merely a convenient veneer when you prefer one outcome over another.

The GOP’s Collective Action Problem

Chait watches Republicans put themselves in a bind over immigration reform:

Immigration reform seems to be a simple problem of Republican Party organization. The interests of the party as a whole dictate passing a bill, but the people who need to do the passing — Republicans in Congress — have an interest in voting immigration reform down.

He wonders if recent statements from Paul Ryan will prove helpful:

There are still plenty of House Republicans who want the bill to pass without having to cast a vote for it themselves. Paul Ryan is enthusiastically stepping forward to pitch immigration reform to his party. Ryan, of course, would very much like to be a Republican presidential nominee one day. And Ryan gets his way within the party more than anybody else.

Caren Bohan notes Ryan’s past efforts on immigration:

Ryan is not a new convert to immigration reform and he says politics are not driving his embrace of it. His work on it goes back to his days as an aide to Jack Kemp, the late congressman who saw immigration as part of a free-trade agenda. In April, Ryan teamed up with his friend, Democratic Congressman Luis Gutierrez, who is a staunch supporter of immigration reform, to tout the issue at an event in Chicago. He has also co-sponsored immigration reform bills in the past.

Paul Mirengoff is skeptical:

Ryan proposes that we grant illegal immigrants a “five-year probationary status” essentially immediately, before anything new and concrete is done to secure the border. If after five years, Congress isn’t satisfied that the border has been secured, the probationary status supposedly will be revoked. Otherwise, the formerly illegal immigrants can proceed towards full citizenship. …

It’s almost unimaginable that the status of former illegal immigrants would ever be revoked. Do you see Republican politicians mustering the courage to pull that trigger? I didn’t think so. At most they might add more years to the probationary period, but I don’t see that happening either. Ryan — I wish I could say this nicely — is conning us.

Civil Unions ≠ Marriage

Governor Christie, who vetoed marriage equality in New Jersey, disapproves of SCOTUS’s ruling:

Zack Ford counters Christie:

Besides the fact that a referendum continues to be a costly, offensive, and unnecessary option, Christie could not be more wrong; in fact, Wednesday’s DOMA decision probably has a bigger impact on New Jersey than on any other state. In the 2006 case Lewis v. Harris, the New Jersey Supreme Court unanimously ruled that the state’s constitution guarantees “every statutory right and benefit conferred to heterosexual couples through civil marriage.” The Court left it up to the legislature to determine how those rights are conferred, and lawmakers at the time passed a civil unions bill. An investigation that concluded in 2008 found that these “separate but equal” unions were inferior and did not meet the Supreme Court’s expectations, and a lawsuit is already pendingto challenge their unequal status.

With Wednesday’s ruling, the case against the civil unions becomes much more significant. Now, not only are civil unions inferior in how they’re respected in the state, they also deprive same-sex couples of all the federal benefits of marriage — the only union the federal government recognizes. A state judge has already scheduled a hearing for August 15 to fast-track Lambda Legal’s lawsuit in light of these new legal circumstances.

Barro looks at Christie’s past rhetoric on marriage and civil unions:

[Christie] said in a statement at the time he issued his veto: “I have been just as adamant that same-sex couples in a civil union deserve the very same rights and benefits enjoyed by married couples—as well as the strict enforcement of those rights and benefits.”

At the time, gay rights advocates disputed the notion that civil unions were equivalent to marriage. After [yesterday’s] decision, they are inarguably right. People in same-sex civil unions in New Jersey lack access to federal benefits that are available to straight New Jersey couples and will soon be available to same-sex married couples in states like New York. The only way to rectify that is to legalize gay marriage.

David Link also notes that, after yesterday’s ruling, it’s impossible to argue that civil unions are “marriage in all but name”:

The dynamics of marriage lite have now shifted. Only full marriage comes within the court’s ruling, a point made by both majority and dissenting justices. States will still have the ability to take half-measures, and I expect some will. But by doing so, they will be enacting laws they cannot expect to be fully equal to marriage. If they have any doubts, they can refer to Windsor.

So if the political argument continues to be about equality (and it should), anyone promoting civil unions as a political compromise will explicitly be compromising that.

Ask Dan Savage Anything: How Much Better Has It Gotten?

Dan explains how the It Gets Better Project has not only saved lives, but enabled a previously-impossible dialogue between gay adults and gay kids as well:

Dan’s new book, American Savage: Insights, Slights, and Fights on Faith, Sex, Love, and Politics, came out a few weeks ago. My recent conversation with him at the New York Public Library is here. Dan’s previous answers are here. Our full Ask Anything archive is here.

The Christianists’ Terms Of Surrender

Douthat wonders how yesterday’s rulings will impact them:

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural weddingaislevictories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular.

If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.

As Ross knows, not all marriage equality supporters are liberals. But I do want to state for the record that my own view is that we as gays will do much better if we combine our formal civil equality with maximal religious freedom for our opponents and unrelenting magnanimity for all, past and present. We have nothing to fear from religious groups who have every right to condemn our marriages if they wish to, and absolutely every right to conduct their own religious organizations as they see fit. If in doubt, give it to them. We are winning this so fast anything else would be unworthy of a civil rights movement which seeks to expand everyone’s freedom. Maybe the right-left split within the gay community will re-emerge after the unity necessary for this landmark moment. Or maybe we can exercize some patience, diversity of view, and good will.

Daniel McCarthy has related thoughts to Douthat’s:

The bigger question isn’t whether more states will recognize same-sex marriage—let alone whether there’s much possibility of rollback—but on what the terms of victory of the SSM side is going to be consolidated. Conservatives have a different battle to fight, psychologically as well as legally, to preserve religious liberty and ensure that this revolution already made doesn’t enter a more radical phase. High-strung right-wingers who say, for example, that the country might as well embrace polygamy if it’s going to have same-sex marriage are not doing themselves any favors. More seriously, this would be a good time for conservatives to take supporters of SSM at their word and insist on stronger cultural as well as legal affirmations of monogamy for everyone. Somehow, though, I suspect that rather than using this as an opportunity to build new coalitions against promiscuity or divorce, we’ll just see a redoubling of resentments.

Legal affirmations of monogamy? And how, pray, would any government enforce them? And why would any conservative want to give government that kind of power? The model, it seems to me, should be that of civil divorce. No Catholic church or Mormon authority will divorce a couple; but the civil law can. And we manage to live with that. Catholics and Mormons do not feel that their religious liberty is under threat because they live alongside divorced couples, or work with them, or employ them. All of us can live equally under the law as well as doing something else: mind our own business.

There is no way to resolve the deep cultural conflict in this kind of area; but there is a way to manage it. With civility, generosity and toleration – on both sides.

Snowden As An American Rorschach Test

edward-snowden-guardian-vid

This was admirably clear from Steve Wozniak:

I don’t think terrorism is war. I think terrorism is a crime. And by using the word ‘war’ we’ve managed to use all these weird ways to say the Constitution doesn’t apply in the case of a war. And I think Edward Snowden is a hero because this came from his heart. And I really believe he was giving up his whole life because he just felt so deeply about honesty, about spying on Americans, and he wanted to tell us.

A reader writes:

Edward Snowden as a personality probably gets far more ink and interest than the situation warrants (conversely, it warrants much deeper exploration of the facts that Snowden exposed), but he is an interesting social lightening rod. Official Washington despises him–that’s both people within the national security state, who understandably feel threatened by him, and the whole supporting apparatus that has grown up around them, including a large part of the media which instinctively feels itself a part of this world and considers it to be under siege. On the other hand, there is another world that lionizes Snowden, and this is the same world that rallied to the defense of Aaron Swartz – hip, young, extremely tech-savvy and with a healthy streak of disrespect for authority at its core.

This world understands the threat that the national surveillance state presents to privacy and personal freedom and responds in an impish fashion to it. It applauds challenges to the sanctimonious claims of self-importance of the national security establishment and loves to see them be revealed as liars and cheats, which at least to some measure they are.

The recent interview Steve Wozniak gave shows all the markers of this community of thinking, and it also reminds us that these people are extremely important to America – they are our innovators and by and large the people who made the current technological revolutions possible. The fear that the national security world has of them, most dramatically exemplified in the Swartz case, but flashing through with Snowden too, points to genius in one corner and a group of dim-witted, power-abusing dullards in the other. So the national security community has a rather challenging PR crisis. The claims to “keep us safe” are already wearing a bit thin, especially as millions around the world begin to view their intrusions into privacy as a more meaningful threat than Islamist terrorism.

And then look at the unenviable challenge this presents to Obama. Both are his natural constituencies. How does he reconcile that? He’s not doing a good job so far, he’s thrown in his lot with the national security state. That is just as predictable an outcome for Obama the president as the opposite was for Obama the candidate.

Another wishes Snowden would have stayed anonymous:

I’ve become wistful for when we didn’t know who Greenwald’s leaker was. Knowledge of the leaker may give us more confidence in the leaks, but it has also focused the press on his motives and character. It doesn’t matter why Snowden leaked the documents – even if his intent was malicious or profit-seeking – the fact is we have a broad surveillance program targeting domestic communications. Every article on his whereabouts is a distraction. We – the press and electorate – need more information about the alleged successes of the program to make a judgement. What country Snowden wants to go to or settle in doesn’t answer any questions relevant to the issue. Right now, the public is making a bunch of gut checks and that’s a damn poor way for an electorate to hold the government accountable.

“Hairy-Jocking” Glenn

Greenwald responds to some unflattering profiles cropping up, peppered with homophobia, including one yesterday in the New York Daily News that dug up a dispute with his condo board over the size of his dog. He’s even accused of being a businessman for a while, some back-tax issues with the IRS and the various sundry, occasionally embarrassing things that will accumulate if you live a life. I was once “power-gluted” myself. I can’t see how any of it detracts from his role in doing what he believed was right in the Snowden case – and I know for a fact that this has been a sincere and principled passion on his part. But I wouldn’t say it’s a function of the persecution of a journalist who rattled those in power – which is too easy a victim card to play for a big boy like Glenn; it is, alas, simply a fact of today’s public life.

Meanwhile, Erik Wemple finds that Greenwald is probably safe from prosecution under the Espionage Act, no matter what David Gregory thinks:

Attorney Jeffrey J. Pyle, a partner in the Boston-based firm Prince Lobel Tye LLP, takes a whack at that question in this post on Greenwald’s exposure:

To prove that Greenwald acted willfully, the government would have to demonstrate beyond a reasonable doubt that he acted “with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.” Bryan v. United States, 524 U.S. 184, 191-92 (1998). For all we can see, Greenwald acted in the time-honored tradition of investigative reporting. It would be next to impossible for the government to prove that he knew his conduct was unlawful.

Hold on: Greenwald clearly knew that the information from Snowden was classified and closely held by the government. So why wouldn’t he have known quite well that his conduct was unlawful? That’s an easy one, according to Pyle. Decades of U.S. history tell us that the government has leaked all manner of classified information to journalists — it’s a commonplace occurrence around these parts. Yet journalists haven’t been prosecuted for publishing that information. When was the last time Bob Woodward faced indictment?

To slam-dunk the situation, consider that around the same time that Greenwald dropped his first NSA scoop, Attorney General Eric Holder said this: “[T]he [Justice] Department has not prosecuted, and for as long as I’m attorney general of the United States, will not prosecute any reporter for doing his or her job.”

Will We See A Republican Comeback?

Harry Enten thinks the GOP could easily win in 2016. He argues that Clinton’s general election polling numbers “won’t stand up over time” and that she is “still coming off a height of popularity since serving in the non-partisan position of Secretary of State”:

At this point, a better feel of how a Democrat might do if the election were held today is polling involving Vice President Biden. Biden is a well-known standard bearer of the Democratic label. He’s been serving in a partisan office for as long as many have been alive. His favorable rating generally matches up with President Obama’s approval rating in the polls.

Last month, Biden was either neck-and-neck or trailed leading Republicans. He was 1pt ahead of Marco Rubio and 2pt ahead of Rand Paul in an early May Public Policy Polling survey. He was behind by 4pt against Paul and 6pt behind Jeb Bush in a Quinnipiac poll.

All of them are also less well-known than Biden, yet they are polling at or ahead of him.

You could argue that Bush is more moderate than the mainstream Republican candidates, though, Rubio and Paul are almost certainly to the right of it. They incidentally are three of the top four leading contenders for the nomination right now. You wouldn’t expect mainstream Republican candidates to be polling this well if the party were too out of the mainstream to win.

Reihan objects to Enten’s claim that the “GOP might be feeling the pressure to adjust its political platforms to win national elections, but it doesn’t need to”:

The conceptual problem with Enten’s piece, in my view, is that some measure of “adjustment” is inevitable, as the issue mix changes from election cycle to election cycle. Issues that were not salient in 2012 will be salient come 2016, and the process of taking a stand on emerging issues will necessarily entail shifts of emphasis, etc. The central claim made by conservative reformers or reform conservatives (or whatever we’re called this week) is that the party still needs a compelling post-Reagan, post-crisis domestic policy agenda that resonates with middle-income voters. A related claim is that though, as Enten notes, the average voter felt that Mitt Romney was closer to them ideologically than Barack Obama, this didn’t mean that the average voter felt that Romney’s policy agenda was more responsive to her needs and concerns, which is the more salient question.