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What has been will be again,
what has been done will be done again;
there is nothing new under the sun.
–Ecclesiastes 1:9

Before there was bigotry, there was — bigotry.

And before there was blogging, there was — blogging:

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.

Before there was bigotry, there was — bigotry.

And before there was blogging, there was — blogging:

In the meantime, Diamond and I wish all of you a Merry Christmas, a wonderful holiday season, and a prosperous new year.

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.

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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.

The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution.

So this is clearly an "end of the beginning" situation rather than a "beginning of the end" (not even the U.S. can claim that status).

Meanwhile, let's not lose sight of how this landmark (if local) decision is serving to unite and inspire the entire nation of India — in religiously commanded hatred and bigotry:

"This Western culture cannot be permitted in our country," said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
…
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.

"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, "at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."

Progress? That's a relative concept.

"I like your Christ. I do not like your Christians. They are so unlike your Christ."
–Mohandas Gandhi

The case is Naz Foundation v. Government of NCT of Delhi (PDF – 105 pages).

Previously:
–Global Christians Race to the Bottom on Gay Bigotry
–Naked Bigotry Update: Pope Urges Anglicans to Reject Gays

–It is a request by President Obama. Literally: "I hereby request the following…" File that under "bold new leadership…"

–It is not "change." The memorandum is thoroughly infested with weasel term such as "currently available," "consistent with," etc. At best, the memorandum is the equivalent of policy proofreading: Let's go back and make sure we didn't miss anything that we were supposed to do in the first place.

–It is expressly worded not to give gays any real tools to work with:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That's boilerplate that always appears in such memorandums — when they're meant not to mean anything.

–It is not a "law" by any denotation of the word. It goes into neither the United States Code nor the Code of Federal Regulations. Only the (voluminous but worthless) Federal Register, which is the functional equivalent of the federal government's scrapbook.

–It is unconstitutional (or would be, if it were an actual law or order rather than a bottom-of-the-cereal-box plastic toy with no real value). More on that below.

–It is not applicable to health care benefits. With the putrid mucus of socialized medicine proposals gushing out of every Obama administration orifice, there's a definite bit of "fierce advocate" irony there.

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Let's go back to why the memorandum, were it at all substantive, would be unconstitutional.

–First, "domestic partner" is not a federal term of art, in either the statutory or regulatory senses, and is therefore unconstitutionally vague. What exactly is a "domestic partnership," who gets to decide, what kind of notice is given, and is there an appeal process? Again, such questions are mere academic cocktail hour topics, since the memorandum isn't really a government action in the first place.

–Second, there are equal protection questions. Let's say you have three similarly situated same-sex couples "covered" (loosely speaking) by the faux initiative:

1. One in Massachusetts, where gays can get married.
2. One in New Jersey, where gays cannot get married but can get "civil unioned."
3. One in Wisconsin, which has a "no nothing never" bigot amendment.

The one thing that the three couples have in common is that none of them have a "domestic partnership." If the intent is to extend (already existing) benefits to the couples in Massachusetts and New Jersey, then where does that leave the Wisconsin couple?

Or perhaps the plan is to have an honor code: The federal employee need only fill out an affidavit declaring her loved one to be her "domestic partner." But that poses equal protection issues too: Why shouldn't unmarried heterosexual couples be afforded the same option?

Because in, e.g., Wisconsin, straights can get married but gays can't? Okay — but now suppose you have a gay couple in Massachusetts who choose not to marry but opt instead to declare themselves an (unmarried) "domestic partnership" in order to glom on to the (not) new policy. Are we going to require them to get married to get the benefits? And so on…

Oh, and DOMA is still on the books. If the memorandum actually meant anything, and if anyone actually had standing to sue over it, then it's fairly obvious that the more potently the memorandum were used, the more likely it would violate DOMA (which, recall, Obama is defending vigorously in court. Ahem…)

Again, this is all angels dancing on the head of our cowardly president. I expect no law review articles, intense blog debates or other elaborate evaluations of these (strictly hypothetical) issues to emerge. But they help illustrate just how pointless the memorandum is. One would normally be tempted to call it "insulting," but this president has so callously insulted gays so many times already that this latest gesture barely warrants a footnote.

The memorandum does not insult the gay rights movement per se (leave that for the ever-lengthening trail of gay-hostile wreckage — from Rick Warren to the DOMA brief scandal, and likely beyond). Instead, this absurd piece of worthless paper insults our intelligence. This obnoxious, Rube Goldberg inspired non-policy, in which Obama actually finds a way to call nothing "something," is like two parents letting their kids vote on toppings for the pizza and pretending that the family is a democracy. It's cute — and strictly fantasy.

Gay apologists for Obama will either fall for it (again), or they won't. While there have been some "green shoots" (rainbow shoots?) on that front, for now I'll settle for a well-directed "I told you so…"

We all knew the likely outcome after oral arguments. We all knew the absurdity of such a monumental question being decided on downright silly parlor debates about "amendments" versus "revisions."

We all knew what wasn't at stake: The all-important finding that sexual orientation is a suspect class entitled to heightened scrutiny still stands in California (and now in Iowa as well). And the "separate but equal" domestic partnership option will remain available to future same-sex couples in California.

We all knew that the activists would come charging out of the gate with their plans to get a repeal initiative on the ballot.

So are there any bangs to be crafted out of this field of whimpers? Perhaps:

–The very-oft-repeated refrain from the majority that "only" the word marriage was at stake, and that the "separate but equal" domestic partnership regime endures, seems to me obviously intended, with disdain and even hostility, for the bigots. One can almost see, emerging from the margins in faint font, "Okay, you win — for all the good it will do you…"

(Someone had a deliciously snarky suggestion yesterday: The California legislature could, consistent with Prop 8 and the decision, limit the words "marriage" and "married" to heterosexual couples but still enact a new status called "wedding" and "wedded" to gays. I'm sure Maggie Gallagher would have a conniption over that.)

–As time passes, it will become increasingly clear that the most tragicomic character in this farce was Jerry Brown, already a laughable and pitiful politics addict long before Prop 8. The court was merciless in its impatient dismissal of Brown's asinine "the constitution is unconstitutional" argument. The lopsided vote notwithstanding, one can only wonder how the case might have played out had Brown not tried to be — well, a politician — and simply toed the "revision not amendment" line. Idiot.

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Most of the voluminous decision addresses the otherwise uncaptivating "amendment versus revision" question and is nowhere near quoteworthy. Two exceptions deserve highlighting, however:

First:

Instead, the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution. [Emphasis added; internal citations omitted.]

This merely restates the California constitution itself:

All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require. [Emphasis added.]

As I noted previously, both passages confuse, horrifically, the words right and power.

It is true, as an axiom, that all political power resides in the people. It is true, as an axiom, that the mob always has the ability to behave like a mob. But these observations are mere matters of unambiguous fact. They are on a par with saying that a person with a gun has the ability to kill. That is a metaphysical statement, not an ethical one — and certainly not a political one.

But such statements, such factual observations, are totally orthogonal to the question of the legitimacy of what "the people" (nee "the mob") do.

Might does not make right. Neither does majority make right.

Second:

As we have observed in past cases, "The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's." The progressive movement, both in California and in other states, grew out of a widespread belief that "moneyed special interest groups controlled government, and that the people had no ability to break this control." … The initiative was viewed as one means of restoring the people's rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments. [Emphasis added.]

In their quest to abridge property rights and freedom of contract, the progressives — and their modern-day liberal heirs — inadvertently enabled the abridging of marriage rights and equal protection by a new category of nefarious "moneyed special interest groups" (i.e., the Mormon and Catholic churches). Go figure.

I, qua libertarian, can't help but feel just a little bit smug over that thought (though I would gladly have traded that emotion for a different outcome here).

The case is Strauss v. Horton, No. S168047 (Supr. Ct. Cal., May 26, 2009) (PDF – 185 pages)

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Meanwhile:

Two of the nation's top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California's gay marriage controversy.

Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

Olson said today that he hopes the case will wind up before the U.S. Supreme Court.

The lawsuit seeks a preliminary injunction against California's Proposition 8 until the case is resolved.

The only way this becomes a federal case is by invoking Romer v. Evans — which of course is entirely on point and which, under any impartial reading, clearly requires that Prop 8 be invalidated.

But are ("activist") federal judges ready to acknowledge that Romer demands that all bigot amendments (and not just California's) be struck down? The smart money (e.g., Lambda Legal) says no. But Olson and Boies are no slouches either — or are they just hired guns, as Kenneth Starr was a hired gun for the bigots in this lawsuit?

Stay tuned…

Previously:
–On the [Original] California Gay Marriage Decision
–On the Petition to Overturn Proposition 8
–On the Brown Proposition 8 Brief
–Thoughts Going Into the California Oral Arguments

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.