As I had said all through the great gay marriage tsunami of years past: States have no "rights." Only individuals have rights. States have powers — powers that they can and do abuse. The question of how social issues, especially gay marriage, will impact the Tea Party movement, is not only unanswered but has been insolently ignored by both those inside and outside the movement. That ends now. (And, as the race to make "yeah, but…" seem non-hypocritical begins, I think it will not end well for the Tea Partiers.

The silence continues to deafen:

While many conservative organizations immediately decried a federal judge's decision last week to invalidate the federal ban on recognizing gay marriages, tea party groups have been conspicuously silent on the issue.

The silence is by design, activists with the loosely affiliated movement said, because it is held together by an exclusive focus on fiscal matters and its avoidance of divisive social issues such as abortion and gay marriage. Privately, though, many said they back the decision because it emphasizes the legal philosophy of states' rights.

No rights. Powers. Abuse. Etc.

"I do think it's a state's right," said Phillip Dennis, Texas state coordinator for the Tea Party Patriots. The group does not take a position on social issues, he said, but personally, "I believe that if the people in Massachusetts want gay people to get married, then they should allow it, just as people in Utah do not support abortion. They should have the right to vote against that."

Everett Wilkinson, state director for the Florida Tea Party Patriots, agreed: "On the issue [of gay marriage] itself, we have no stance, but any time a state's rights or powers are encouraged over the federal government, it is a good thing."

What kind of party (or movement or whatever), especially one that claims to be radically transforming the political landscape at the most basic constitutional and philosophical levels, "does not take a position on social issues"? Setting priorities is one thing; fingers-in-ears la-la-la chanting is something else entirely.

Keep in mind that this phenomenon is not an inconsistent message within the movement, comparable to Dixiecrats or Rockefeller Republicans. It's a perfectly consistent absence of a message. Indeed, it appears some Tea Partiers actually conflate the two and boast that "the lack of a message is the message" (or: "I'm as mad as hell, and I'm not gonna think about this anymore!!!") Again, good luck "radically transforming the political landscape at the most basic constitutional and philosophical levels" with that.

This vapid tunnel vision is, of course, to be expected, since the Tea Party's positions (again, is the plural "positions" even appropriate?) are based on no true theory of law or politics. The Tenth Amendment argument upon which the Tea Party now relies was a total afterthought, a means to an end, an excuse.

This is exactly why libertarians should avoid the Tea Party, at least for now. Libertarianism is a philosophy (with an associated school of jurisprudence and a theory of constitutional interpretation that consists of more than, "Tenth Amendment – Fuck Yeah!").

Libertarianism is a philosophy that, hopefully, can be and is applied consistently across all or most policy issues. It is, contrary to the kindergarten screeches of some, more than a loose collection of "conservatives who want to smoke pot." Compare and contrast that to the Tea Party, a loose collection of "conservatives who sorta kinda think that the Tenth Amendment sorta kinda means something, sometimes."

Incidentally, another reason that libertarians should avoid the Tea Party, just like they should have avoided the vulgar anti-gay bigot Ron Paul, was that even if the Tea Partiers do think that the Tenth Amendment sorta kinda means something, sometimes, there is no evidence whatsoever that they think the Fourteenth Amendment ever means anything. No rights. Powers. Abuse. Etc.

More thoughts at gaypolitics.com.

–Typically, when one thinks of DOMA's unconstitutionality, one thinks of Section 2, the so-called "repeal of Full Faith & Credit" provision (which even conservatives acknowledge is probably unconstitutional). Section 2 is not part of these lawsuits — only Section 3's "no nothing never" ban of recognition of same-sex marriage at the federal level was struck down.

–The brass ring of gay rights litigation (i.e., a federal ruling that sexual orientation is a suspect class entitled to intermediate scrutiny), is nowhere to be found in these rulings. That's unfortunate. More on that below.

Gill v. OPM:

–Judge Tauro rightly relies far more on Romer v. Evans and its core holding that mere dislike of gays is not a legitimate government interest. Indeed, Gill highlights how DOMA was explicitly passed for no real reason other than to express contempt, indeed disgust, for gays.

–Gill highlights, among the other federal benefits denied gay couples, spousal and survivor benefits under Social Security. Back when voluntary partial privatization of Social Security was a topic of discussion, I repeatedly pointed out that the status quo was severely detrimental to gays. That didn't stop gay liberals, like all liberals, to gush over how awesome Social Security was and how monstrous it would be to propose altering it in any way. Apology accepted.

–I also seem to recall pointing out that the recent "order" from the Obama Administration asking the federal government to explore ways to tap-dance around DOMA for purposes of employee benefits was either meaningless or unconstitutional. Judge Tauro seems to agree:

A basic tenet of statutory construction teaches that "where the plain language of a statute is clear, it governs." Under the circumstances presented here, this basic tenet readily resolves the issue of interpretation before this court. The … statute unambiguously proclaims that "'member of family' means the spouse of an employee or annuitant [or] an unmarried dependent child under 22 years of age." And "[w]here, as here, Congress defines what a particular term 'means,' that definition controls to the exclusion of any meaning that is not explicitly stated in the definition."

By making any effort to pretend that DOMA doesn't mean what it says and says what it means, the White House is failing in its duty to faithfully execute the laws.

–Going back to the standard of review, Judge Tauro simply gets it wrong (as any perpetually frustrated libertarian can tell you). Rational basis reviews means that any stated or imaginable "legitimate government interest" is permissible. Merely debunking the stated reasons is not enough: the challenger must show that no possible legitimate interest exists. That was not the approach Judge Tauro took (see Page 22), and that it why the case will be overturned on appeal.

–On the other hand, Judge Tauro's analysis of the government's asinine attempt to use "preserve the status quo" (i.e., as it existed in 1996) as a newly concocted "legitimate government interest" is very impressive. I especially liked this smack-down:

The states alone are empowered to determine who is eligible to marry and, as of 1996, no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.

The entire point of DOMA was to scrap the status quo. To claim now that its purpose was to preserve the status quo is so stupid an argument that only the increasingly disingenuous Obama Justice Department could suggest it.

Massachusetts v. Sibelius:

–Regarding the Tenth Amendment case, Massachusetts v. Sibelius, I don't have much to highlight except to point out that one of the issues in the litigation was a cemetery plot — the same-sex spouse of a veteran simply wanted to be buried with his husband in a federally funded veterans cemetery. DOMA made that impossible (on pain of denial of federal funds). Last time I checked, the dead don't procreate. When they say it's "all about the children," they lie.

–On the merits, Judge Tauro relies on the so-called "rational basis with bite" Commerce Clause cases, Lopez and Morrison, while the DOMA challenge is based on Congress exceeding its power under the Spending Clause. That surely will be a focus of attack on appeal.

Politics:

–Speaking of attack on appeal, the aforementioned Obama DOJ has already announced that it is "studying" the ruling. One more time: There is nothing, absolutely nothing, in the Constitution that "requires" the Executive Branch to defend every, or any, federal law that is declared unconstitutional. The Obama DoJ tried that lie once before to calm the uppity gays over this litigation. Let's see if they try it again.

–Back to the Tenth Amendment argument. As I had said all through the great gay marriage tsunami of years past: States have no "rights." Only individuals have rights. States have powers — powers that they can and do abuse. The question of how social issues, especially gay marriage, will impact the Tea Party movement, is not only unanswered but has been insolently ignored by both those inside and outside the movement. That ends now. (And, as the race to make "yeah, but…" seem non-hypocritical begins, I think it will not end well for the Tea Partiers.)

–I certainly owe GLAD an apology. I didn't see these cases going anywhere (and I still see them overturned on appeal), and I am always skeptical of cases not coordinated, or at least endorsed, by Lambda Legal. Well done, folks.

–Finally, a gentle reminder that Nancy Pelosi is a bitch:

The Speaker strongly supports today's ruling that the Defense of Marriage Act violates the Constitutional guarantee of equal protection. We must continue to work against division and distraction in our country, and work toward the day when all American families are treated equally.

Bitch.

The "Baker v. Nelson" that Senator Chuck Grassley referred to, twice over two days, during the Sotomayor confirmation hearings was not the Minnesota decision itself: 291 Minn. 310, 191 N.W.2d 185 (1971). It was the subsequent one-paragraph dismissal of a pending federal appeal by the Supreme Court, 409 U.S. 810 (1972), "for want of a substantial federal question."

The precedential value of such a dismissal (a very rare move) can be, and is, debated in and of itself. The objective (i.e., non-bigot) consensus is that a "federal question dismissal" is only binding in regards to subject matter jurisdiction. And if federal courts lack jurisdiction over a state court case, then of course the underlying merits of that state court ruling remain binding. All that federal Baker v. Nelson says is that state Baker v. Nelson could not be appealed in federal courts given the specific facts of the case and the status of federal Fourteenth Amendment jurisprudence, as it stood in 1972. Nothing more.

But some legal analysts, and all anti-gay bigots, try to bootstrap that flowchart into a claim that federal Baker v. Nelson was then, or is now, somehow a sweeping, all-encompassing "decision on the merits" (i.e., of whether any gay marriage ban can ever be challenged in any federal court). It is not.

All federal Baker v. Nelson says is that, in 1972, same-sex marriage was not a "substantial federal question."

But of course, this is not 1972.

Any constitutional law scholar (or at least those not appearing before a Senate confirmation panel) who researches the issue (Sotomayor testified that she was unfamiliar with it) will tell you that Zablocki v. Redhail (1978), Romer v. Evans (1996) and Lawrence v. Texas (2003) — not to mention DOMA (1996) — have clearly and unambiguously rendered federal Baker v. Nelson a nullity. (State Baker v. Nelson is still perfectly good law — for now.)

Precedent is only precedent until it isn't anymore. Anti-gay discrimination generally, and same-sex marriage specifically, are now obviously "substantial federal questions," period. To suggest otherwise is self-abasing constitutional insolence.

On timely motion, the court must permit anyone to intervene who … claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
–Federal Rule of Civil Procedure 24

Some very misinformed gay bloggers are completely misunderstanding, and misreporting, the news that Lambda Legal, the ACLU and other major gay advocacy groups are petitioning to intervene in the controversial "Olson/Boies" lawsuit challenging Proposition 8 (Perry v. Schwarzenegger).

Box Turtle Bulletin:

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olsen [sic] and Boise [sic] oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

Towleroad:

The argument for the Johnny-come-lately LGBT groups butting out is more persuasive than just a me-first, knee-jerk reaction[.]
…
It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or — depending on your capacity for cynicism — are intentionally dragging down a suit from a rival group working for the same cause.

The Box Turtle Bulletin clip, besides misspelling both Olson's and Boies' names, is especially frustrating in its obliviousness. Are we really dealing with "four captains trying to pilot the ship" — or "two captains trying to take back the cockpit from a pair of drunken stewardesses"? I don't know.

What I do know is that if my interests are being represented, against my will and against my reasoned judgment, by parties I conclude are not well suited to do so, then I am surely entitled to act on my own behalf. Rule 24, and Lambda's actions, are deeply routed not only in law, but simple ethics and common sense.

But so what, right? Burn her anyway!

The following is the comment I left at Towleroad:

Anyone who thinks that Lambda Legal and the ACLU are "johnny come lately" groups is too hopelessly uninformed on the history of gay rights litigation to be taken seriously.

Meanwhile, intervention is a matter of right. If the potential intervenor (and the judge) believe that the litigation affects the intervenor and that the litigants are not likely to adequately represent the intervenor's interests or legal arguments, then it is wholly appropriate to allow the intervenors to represent their own interests. It's called "due process" — maybe you've heard of it?

Or are we suddenly opposed to allowing people to sue for their rights?

One more point: The term is "amicus curiae" — friend of the COURT. It says nothing about being a "friend of the plaintiff."

Maybe Olson & Boies will prevail. Maybe Lambda Legal is reaching the wrong conclusion and taking the wrong action. Entirely possible.

But any gay who questions Lambda's motives, their superior ability to strategize on gay rights litigation, or their proven track record, is just being insolent for the sake of insolence and is humiliating himself before the entire gay blogosphere.

—

Yes, I intend to blog about the Massachusetts DOMA lawsuit. For now, here's a tweet I posted:

I see one interesting point in the Mass DOMA complaint. The rest is gobbledygook that will likely be dismissed for lack of standing.

Stay tuned.

Contrast the commendable ruling in Safford with the outrageous decision in Morse v. Frederick, in which the Court held that an adult student, not enrolled in school that day and not on school grounds, essentially has no First Amendment rights, because — "OMG drugs!"

What I found disappointing in the decision, however, was the total failure to critically review the claim that there was any legal basis to search the 13-year old girl at all — let alone by strip search.

The only basis for school officials to suspect Redding was because a fellow student — already caught with contraband "OMG drugs" (i.e., ibuprofen), therefore already in trouble, and with a prior disciplinary record that surely negates any credibility she might have, fingers a classmate ("they must be hers").

How is that "probable cause" to conduct any search, let alone a strip search? How does a busted delinquent trying to dig herself out of a disciplinary hole satisfy the "totality of the circumstances" test of Illinois v. Gates?

(Recall also that Gates lays down the criminal standard for basing probable cause on an unreliable witness. Safford was not a criminal case, but only a "school policy" case. If the police could not have strip-searched Redding based only on a non-credible fellow student's account, then how could school officials possibly do so?)

The Court got it exactly right in its recognition that "strip searches ought to be different." What it got wrong is its refusal to recognize that "school searches ought not be different."

Finally, another tweet of mine:

Thomas, whom the stupid wing of the libertarian movement adore for some reason, again opines that children have no rights in school. kthxbye

In loco parentis might — might — not be an insane educational policy if — if — school were voluntary.

But to compel government-run, or at least government-regulated, education (i.e., to negate parental control), and then turn around and suggest, as Thomas does, that schools should be allowed to exercise full parental control, is so overtly self-contradictory that it is hardly surprising that no other Justice even bothers to respond to it.

The case is Safford Unified School District #1 v. Redding, No. 08–479 (June 25, 2009) (PDF – 44 pages).

Previously:
–Linkfest: Two "School as Prison" Anecdotes
–Linkfest: Supreme Court Roundup

—

Regarding Ricci v. DeStefano, yet another tweet:

It's a funky day indeed when I agree wholeheartedly with Justice Scalia. Not since Kyllo perhaps.

The Court resolved the reverse discrimination case under Title VII of the Civil Rights Act of 1964, rather than under the Equal Protection Clause. Which is to say that the Court ignored the pesky fact that Title VII, as invoked in this case at least, is patently unconstitutional.

As Justice Scalia put it:

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.

The best "peace" would of course be to acknowledge the plain language of the Fourteenth Amendment and concede that overt reverse racial discrimination in the name of eliminating (real or imagined) covert racial discrimination is — ahem — racial discrimination and therefore proscribed under the Equal Protection Clause. Disparate impact can never be the justification for disparate treatment — it's downright Kafkaesque. Two statutory wrongs do not make a constitutional right.

Finally, this was too long for me to tweet, so I had to post it to my Facebook instead:

Ginsburg's claim that there was no discrimination, because "everybody's score was equally discarded" is as disgraceful and disgusting as saying that there is no anti-gay marriage discrimination, since gays can equally marry someone of the opposite gender. Absolutely outrageous. Shame on her.

More on that today from George Will.

The case is Ricci v. DeStefano, No. 07–1428 (June 29, 2009) (PDF – 93 pages)

Previously:
–No Gender Left Behind