The Dish

by Patrick Appel

Jay Michaelson worries that the recent state marriage equality rulings are on a collision course with the Supreme Court:

[T]he lofty rhetoric of these [state] decisions and their legal reasoning are a far cry from Justice Anthony Kennedy’s opinion in United States v. Windsor, which invalidated the Defense of Marriage Act less than a year ago. As a challenge to a state marriage amendment or law now seems destined to end up at the Supreme Court, probably in the next term, these discrepancies should be cause for concern.

Emily Bazelon isn’t fretting:

[T]he momentum raises a question no one would have dreamed of a year ago: Will gay marriage become the law of the land without the Supreme Court doing anything more? … Add it all up, including Pennsylvania, and we’ve arrived at 29 states where same-sex marriage is legal or on its way there unless an appeals court blocks it—past the halfway point and far past the tipping point. (Yes, 32 states still have laws or constitutional amendments on the books that deny marriage equality to same-sex couples. But those are the laws that are toppling like a line of dominoes.)

We’ve arrived here so much faster and more agreeably than anyone could have predicted even a year ago, when the challenges post-Windsor looked like they would split the district courts, take their time wending their way through the appellate process, and maybe arrive back at the Supreme Court in, say, 2017, safely after the next election. Instead, no judge wants to write the opinion denying the benefit of marriage. Judge John Jones of federal district court in Pennsylvania, who issued [yesterday’s] ruling, was endorsed by none other than Rick Santorum, beloved of the religious right. Judges aren’t supposed to rule by the polls, but that doesn’t mean they’re unaffected by the rising tide of public support, especially among young people. As Northwestern University law professor Andrew M. Koppelman said to Adam Liptak in the New York Times: “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots.”

Dale Carpenter analyzes the PA ruling:

Unlike most other district courts recently, Judge Jones held that same-sex couples have a fundamental right to marry.  He held that the Pennsylvania couples were not seeking a “new” right but only participation in an old one, the right to marry.

Carpenter also points out that, “unlike most other district courts, he determined that sexual-orientation discrimination triggers intermediate scrutiny”:

This intermediate-scrutiny approach seems to me to be the most doctrinally grounded way to strike down bans on same-sex marriage. It leaves in place the deferential caste of rational-basis review. It also makes clear what every court seems to have recognized recently: that there is a long history of discrimination against gays and lesbians, that sexual orientation is unrelated to individual merit, that it continues to be difficult for homosexuals to get legal protection through the political process in many areas of the country, and that there is not an “exceedingly persuasive” reason to exclude gay couples from marriage (even if there is a jurisprudentially “rational” one).

John Culhane notes that the plaintiffs in PA “won on both liberty and equality arguments”:

Early on, the marriage equality litigation focused on the denial of equality to same-sex couples. That was thought to be a more sympathetic strategy than trying to claim that the fundamental right to marry (a liberty interest, constitutionally speaking) extended to same-sex marriages. That’s because the Supreme Court has sometimes defined “fundamental rights” quite narrowly and limited those rights to those who were historically protected. But increasingly, courts are finding that the fundamental right to marry means a right to marry the person of one’s choice, history aside. That’s what Judge Jones held, with pointed reference to Loving v. Virginia, where the high court struck down an anti-miscegenation law. That states had long barred interracial marriages didn’t make Virginia’s historical choice acceptable, and it’s no longer acceptable in the same-sex marriage context, either.

by Tracy R. Walsh

Steve Kandell, whose sister was killed in the World Trade Center, shares his conflicted experience touring the National September 11 Memorial & Museum:

I can feel the sweat that went into making this not seem tacky, of wanting to show respect, but also wanting to show every last bit of carnage and visceral whomp to justify the $24 price of admission – vulgarity with the noblest intentions. … I think now of every war memorial I ever yawned through on a class trip, how someone else’s past horror was my vacant diversion and maybe I learned something but I didn’t feel anything. Everyone should have a museum dedicated to the worst day of their life and be forced to attend it with a bunch of tourists from Denmark. Annotated divorce papers blown up and mounted, interactive exhibits detailing how your mom’s last round of chemo didn’t take, souvenir T-shirts emblazoned with your best friend’s last words before the car crash. And you should have to see for yourself how little your pain matters to a family of five who need to get some food before the kids melt down. Or maybe worse, watch it be co-opted by people who want, for whatever reason, to feel that connection so acutely.

Rosemarie Ward, noting that many of the items on display were donated by victims’ families, is more moved:

Throughout the space are segments of twisted steel, like sculptures. A fire engine from the back looks a bit battered, but the entire front cab is a ghost of mangled steel. A set of partially damaged concrete stairs nestle between an escalator and the museum’s main staircase. The so-called “Survivors’ Staircase” was an outdoor staircase that led some survivors to safety on nearby Vesey Street. In removing this staircase from the site, architects and archeologists treated it as carefully as an ancient relic. …

The audio and video clips of those who are lost, of those who remain, of construction workers, of firefighters, of ordinary New Yorkers, are very moving. The personal accounts, such as the one from John Napolitano whose firefighting son died that day, are hard to listen to. The last phone calls of those lost are devastating. The multi-media exhibits, designed by Local Projects, are particularly moving. In some places visitors are encouraged to make videos while at the museum, which will become part of the exhibit.

The museum is extremely well done. It offers solace to those who still mourn, and an education for those who were not yet born.

(Photo: Objects recovered from the World Trade Center site are displayed during a press preview of the National September 11 Memorial Museum at ground zero May 15, 2014 in New York City. The museum spans seven stories, mostly underground, and contains artifacts from the attack on the World Trade Center Towers on September 11, 2001 that include the 80-foot high tridents, the so-called ‘Ground Zero Cross,’ the destroyed remains of Company 21’s New York Fire Department Engine as well as smaller items. The museum opens to the public on May 21. By James Keivom-Pool/Getty Images)

by Jonah Shepp

Jared Bernstein argues that we can’t have it both ways:

[T]here are three reliable ways to help or “lift” the bottom: subsidies that increase the poor’s economic security today; investment in their future productivity; and targeted job opportunities at decent wages. The first two are more closely related than you might think, because researchers are discovering that anti-poverty consumption programs such as nutritional and income supports have long-lasting benefits to children in families that receive them. None of these three approaches are free.  …. All of the above — the expanded earned-income tax credit, universal preschool, job-creating infrastructure — will take more tax revenue, and much of that new revenue will need to come from those at the top of the wealth scale.

Douthat objects:

1) I don’t think even Bernstein believes that it’s actually impossible to improve the situation of the poor without directly raising taxes on the rich.

What about, to pick two ideas favored by various thinkers on the left and right, a one-two punch of criminal justice reform to reduce incarceration rates and urban upzoning to lower the cost of living and working in wealthy cities? Both would probably improve opportunity for the poor and the lower-middle class; neither would require a higher top marginal tax rate or massive new public outlays. Do these kind of ideas just not count?

2)  It’s possible to favor increasing redistribution along something like the lines Bernstein suggests — through an expanded earned income tax credit, for instance — while disagreeing that we need a higher top marginal rate or a Piketty-style wealth tax in order to do it. Given that our existing tax code, like the zoning policies mentioned above, has a heavy pro-rentier and pro-rich bias, why couldn’t we start by cutting or capping existing tax subsidies — for expensive homes, for expensive health insurance, for being a wealthy taxpayer in a high tax state — and put that money to work first? This would involve “new revenue,” in a sense, but you wouldn’t have to raise tax rates (as we already just did) in order to get it, and you would be redistributing unearned, effectively-subsidized riches rather than just hacking away more indiscriminately at the idle and entrepreneurial alike.