The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.

This is, of course, utter nonsense.

While it is true that corporations are "mere creatures of law," as John Marshall put it, it is also true that they are, at their core, nothing more than voluntary associations of free individuals (unlike, e.g., labor unions, which are also creatures of government — but unlike corporations are granted coercive powers over unwilling parties).

It is absurd in the extreme to suggest that two free individuals acting jointly can somehow have "less rights" than those two same free individuals would have acting individually.

Any voluntary association of free individuals must, by definition, have all the same rights as the free individuals comprising that association. To suggest otherwise is, of course, to trample the rights of the individuals — something the Times of course advocates practically every day of the week.

More:

The law also gives corporations special legal status: limited liability, special rules for the accumulation of assets and the ability to live forever. These rules put corporations in a privileged position in producing profits and aggregating wealth.

First, a correction: corporations do not have "limited liability" — shareholders have limited liability, in exchange for limited power over the corporation (another bugaboo that keeps Times editors awake at night — see generally, "executive pay"). But what does this voluntary arrangement among shareholders have to do with their joint rights as free individuals? The limited liability canard is a total non sequitur.

And note the simplistic "Gilded Age robber baron" paranoia of "corporation as leviathan." Remember, these are same supposedly evil, profits-now-and-forever monstrosities that are almost completely owned by pension funds (including government- and union-managed pension funds), university and other non-profit endowments, and various other civic entities that must be deemed, according to the Times' kindergarten logic, greedy capitalist bastards.

Finally, recall that no matter how "privileged a position" a corporation may have, people always (or at least when government stays out of it) have an even more privileged position: the position of not having to do business with it. No matter how gargatuan General Electric, Microsoft, Wal-Mart, Kraft or Altria become, you can always (or at least when government stays out of it) say, "No thanks."

—

A post script to my minarchist comrades who, like our common liberal opponents, are leery of corporations and their supposed power: Never forget that the problem with corporate rent-seeking is the rent-seeking, not the corporation. Keep the focus on where it should be: on limiting the power of government to favor some groups over others. If politicians have nothing to offer, then nobody — including corporations — would try to buy them.

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.

[I]f you're on that no-fly list, your access to the right to bear arms is cancelled, because you're not part of the American family; you don't deserve that right. There is no right for you if you're on that terrorist list[.]

That was Rahm Emanuel back in 2007. You can watch the video here.

That stupid, un-American and downright evil statement had been (quite properly) dismissed and forgotten, along with most of Emanuel's hyper-partisan, Rovian blather.

Unfortunately, there are plenty of other hyper-partisan, Rovian blatherers:

Citing a "terror gap," Sen. Frank Lautenberg (D-N.J.) … introduced legislation yesterday to give the U.S. attorney general authority to stop the sale of guns or explosives to terrorists.

Just one problem: Lautenberg's proposal does not concern "terrorists," but people on the no-fly list.

Some are quick to point out that the no-fly list (now over one million names and rising) is teeming with false positives — including children, generals and several members of Congress.

True that. But one must go further and ask why there are so many false positives on the list. As I noted elsewhere:

False positives aren't even the issue — true positives are just as problematic.

Suppose for the sake of argument that the no-fly list is constitutional, reasonable and inoffensive to libertarian sensibilities (big assumption, I know).

What Emanuel proposes here is that the (hypothetically appropriate) denial of a privilege (i.e., non-right), without traditional notions of due process (notice and a hearing before a neutral magistrate), be used to bootstrap to the denial of a full-fledged constitutional right (the Second Amendment right to bear arms).

This the Fifth Amendment simply does not allow. Not even close.

Keep this important point in mind as the hyper-partisan Rovian blather continues: This is not a Second Amendment issue — it is a Fifth Amendment issue. Anyone who supports the Lautenberg bill opposes the Fifth Amendment. The Second Amendment is entirely ancillary.

(Lautenberg, fully aware that his proposal is unconstitutional, nevertheless pretends that his plan comports with due process because anyone on the no-fly list can challenge the denial of her Second Amendment rights after the fact. This would be akin to saying that a couple convicted for violating an unconstitutional sodomy statute aren't denied their rights, because they are still entitled to appeal to have the conviction overturned after the fact. That's absurd, of course: Being forced to sue for rights wrongly denied you under an obviously unconstitutional law is still a due process violation. There is, in essence, a right not to have to sue for your rights.)

So I ask again: what happened to that new civil libertarian paradise that Obama and the hyper-liberal Congress were going to usher in?

It's probably in that same alternate reality where DOMA and DADT have already been repealed.

Previously:
–Think Twice Before Ordering a Special Meal
–"Secure Flight" Revisited
–CAPPS II Successor Unveiled
–CAPPS Capsized

The courthouse in Jackson County should have to take town several copies of the Ten Commandments because they are an improper governmental endorsement of religion, a federal lawsuit argues.

The lawsuit by the American Civil Liberties Union of Kentucky and a county resident, Eugene Phillips Jr., seeks a ruling that nine copies of the biblical laws on the courthouse walls in McKee are unconstitutional. It also seeks an injunction ordering the county to take down the copies.

The lawsuit is the latest fight over copies of the Ten Commandments in government buildings in Kentucky, which has been a key battleground on the issue.

Maybe they just don't have phones in Appalachia. Or newspapers. Or literacy. Because if anyone in charge of running courthouses in Kentucky would bother to talk to anyone else in charge of running courthouses in Kentucky, then they would learn that you can't paper the walls with nine — count 'em, nine — Decalogues by themselves. McCreary County v. ACLU, 545 U.S. 844 (2005).

What you can do is dilute and debase the religion you claim to celebrate by insisting that the Ten Commandments aren't "religious" at all, but merely one among a collection of "important historical symbols and figures." "Historical" (i.e., not "religious"), "important" — but no more important than Hammurabi's Code or Magna Carta (understandable, given the pesky fact that only four Commandments have anything remotely resembling an analogue to secular law). Van Orden v. Perry, 545 U.S. 677 (2005).

It never ceases to amaze me how incapable theocrats are of recognizing the inherent contradiction behind their relentless quest to turn courthouses (and schools and … ) into churches. By stripping the Ten Commandments of its uniqueness, the theocrats actually hurt their own cause (i.e., the erosion of the Wall of Separation). Better a Decalogue be deemed puny enough for a courthouse rather than too sacred for a courthouse?

That, in their view, somehow advances Christianity?

More:

[Judge-Executive William O.] Smith said he had not seen a copy of the lawsuit but that most county residents would support keeping the Ten Commandments displayed in the courthouse.

Exactly the point — to anyone who understands the First and Fourteenth Amendments (which this "Judge-Executive" clearly does not). The First Amendment was designed precisely to frustrate "most" people (i.e., the majoritarian mob) and to protect the rest of us — all the way to Eugene Phillips Jr. — even if he is only "one negative person."

(Via Religion Clause.)

Previously:
–On the Dixie County Decalogue
–"Jesus Judge" Does a George Wallace Impersonation
–Activist Legislators: Better Five Wasteful Monuments Go Up…
–"One Negative Person"
–B.A.T. Archives: One Nation, Under A Generic Monotheistic Deity
–What Part of "Establishment" is Unclear?
–CRS Recommendation: The Law of Church and State

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

1. Because it is an affront to our longstanding aversion toward double jeopardy, "punishes thought" and further erodes what little federalism-style checks and balances still exist in American governmental policy today.

2. Because it includes sexual orientation.

So as "you #1" (i.e., my fellow libertarians) sally forth into the blogosphere to argue against ENDA, be careful to remember that the "enemy of your enemy" may well be a James Dobson or Pat Robertson, and does not really share your libertarian views on — well, anything other than opposing ENDA.

And as "you #2" (i.e., my fellow gay activists) sally forth into the blogosphere to argue for ENDA, be careful to remember that the "friend of your enemy" may well not be a James Dobson or Pat Robertson and does not really share their bigoted views on — well, anything other than opposing ENDA.

I, meanwhile, already split that baby in the posts below.

Previously:
–A Gay-On-Gay Hate Crime?
–On the ENDA-T Conundrum
–On Religious Bigots' New-Found (Faux) Libertarianism

—

On a somewhat related note, let's also recall that the correct reason to oppose the Obama administration's plan to try to have the Census Bureau count same-sex marriages is not because gay marriages shouldn't be counted, but because no marriages should be counted.

The sole legitimate function of the Census is to enumerate people (i.e., who lives where) for two and only two purposes: the allocation of House seats and presidential Electors. There is nothing in Article I, Section 2 about counting marriages — or occupations, incomes, refrigerators or anything else. Such privacy-eroding inquiries by the Census are extra-constitutional at best and downright unconstitutional at worst.

Previously:
–Big Census is Watching (and Betraying) You

Two of the nation's top marriage equality litigators will lead a nationwide phone briefing on Tuesday, May 12th, to discuss current and upcoming developments in same sex marriage. The call is free and open to the public.

The discussion will be led by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders.

Jennifer Pizer served as co-counsel on the case that established the rights to equality for same-sex couples (In re Marriage Cases), and the subsequent challenge to Proposition 8, Strauss v. Horton. Mary Bonauto served as co-counsel in Baker v. State of Vermont, establishing that Vermont same-sex couples are entitled to all the benefits and protections of civil marriage.

Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.

The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
…
"People seem to say that if you enter the world of commerce, you lose all your First Amendment rights" to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. "They … have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services."

This is, of course, a decidedly libertarian argument. In Libertopia, all interactions, or at least all those involving competent adults, are strictly voluntary. There would be what the law calls "economic substantive due process," in the same way (and for the same reasons) that there is "privacy substantive due process" (e.g., Roe v. Wade, Lawrence v. Texas).

This is where libertarians tend to get into trouble. When confronted by non-libertarians with charges such as, "you oppose the Civil Rights Act" or "you believe in the right to be a racist business owner," we basically have to plead "guilty."

Of course, we also have the affirmative defense of asymptotic irrelevance. In Libertopia, there wouldn't be a Civil Rights Act because there wouldn't need to be a Civil Rights Act. Recall that Libertopia would be a capitalist society — and capitalism is always the first best weapon against bigotry. If you're a "greedy" businessperson, then you'll gladly buy from blacks, sell to Jews and hire gays. And if you don't, then you will suffer the punitive damages of competition — which far exceed those that could be imposed by any court of law.

So yes, on a strictly superficial level, libertarians would generally agree with the aforementioned laments by the bigots and theocrats. Point conceded.

But consider: What if the aforementioned litany of horribles had not been exclusively about gays?

– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph an interracial couple's commitment ceremony.

– A psychologist in Georgia was fired after she declined for religious reasons to counsel a Jew about her relationship.

– Christian fertility doctors in California who refused to artificially inseminate a disabled patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

– A Christian student group was not recognized at a University of California law school because it denies membership to foreign students.

Most hard-core libertarians would be unfazed in their support of economic substantive due process and its requisite toleration of such private discrimination in most of these scenarios. In fact, I would wager that libertarians as a group would be more likely to defend all the bigots than the bigots themselves would be ("Blacks are Christians; our problem is with Jews." "Jews are white; our problem is with blacks." Etc.)

The "victimized" Christian bigots are of course not making a thorough, comprehensive (i.e., truly libertarian) demand for full entrepreneurial freedom of contract — and its reciprocal "right to refuse service to anyone." All they want to do is discriminate against gays. Not "anyone and everyone." Just gays.

Which is precisely why they should not be allowed to do so. As I have blogged previously: Whether or not you approve of bans on private discrimination is not the point — we are not debating the creation of Libertopia.

The point is instead whether, given that we already have such laws, are we going to craft and apply those laws consistently, logically and equitably — or are we going to short-circuit the entire raison d'être of such laws by allowing the majoritarian mob to fashion carve-outs for the very same insular minorities who are most in need of such laws?

If the religious bigots really want to invoke libertarian arguments to legitimize their bigotry, then they better be prepared to be judged by real libertarians about the entire spectrum of libertarian issues — including separation of church and state.

Think they'll go for it?

Previously:
–On the ENDA-T Conundrum
–eHarmony, eCommerce and eBigotry
–Separation of Ice Cream Parlor and State?