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Today the Supreme Court handed down an extremely important case on the environment, Massachusetts v. EPA. In it the Court ruled that the EPA has the authority to regulate carbon dioxide/auto emissions as a pollutant. It is forcing the EPA to reconsider its refusal to regulate carbon dioxide and to base its decisions on regulation/non-regulation on applicable law rather than arbitrarily declining to do so. The lawsuit arose as several states sued the EPA to get the federal government to do something about global warming.

The case is a stinging rebuke of Bush’s approach of doing absolutely nothing about climate change. Said Justice Stevens in writing for the majority:

“A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere… EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”

For the first time the Court has weighed in on global warming and broadly reviewed national policy on the issue in favorable terms. That’s fantastic, although the 5-4 nature of the decision reminds one of the razor-thin balance of power on the Court; the decision could have easily gone the other way. Nevertheless, the precedent set by the decision is great news as individual states continue their battles against global warming.

“When is the predicted cataclysm?”

–Asked by Supreme Court Justice Antonin Scalia as arguments opened today in the carbon dioxide/global warming case before the Court.

How a Supreme Court Justice could be so ignorant, so callous, so disdainful of a reality agreed to by most scientists, and have his head stuck so far up his ass that he’d ask this question is beyond me.

In what is likely to be the most important environmental case ever decided by the Supreme Court, several states and environmental groups are pushing for the EPA to regulate carbon dioxide emitted from cars as a pollutant on the basis of it being a threat to public health because of global warming. The Bush administration is predictably arguing that carbon dioxide does not meet the definition of a pollutant and should therefore remain free of EPA control. It fears, of course, that allowing EPA regulation of automobile carbon dioxide will open the door to regulation of carbon emitted by the energy industry that is so cozy with the administration.

In the face of overwhelming evidence that global warming is a reality here and now, and that many species of wildlife and even economies and businesses are desperately trying to adapt to climate change, the Bush administration continues to keep its head stuck in its collective ass about something that poses an extreme danger not just to public health but to all of civilization as we know it. This has led individual states to take the lead in the global warming fight–by enabling carbon trading, imposing industrial restrictions, and by using the courts to get the federal government to do something, anything, to begin reducing US emissions.

My hope is that the new Democratic Congress will be much more environmentally aware, and that it will exert much needed pressure on the President to stop living in la-la land as usual and begin taking concrete steps to fight this problem. The Supreme Court case could also force Bush’s hand. The case, Massachusetts vs. EPA, is scheduled to be handed down next year.

Gay activists have much to rejoice over for the New Jersey Supreme Court’s decision in Lewis v. Harris extending the right of marriage to same-sex couples–it is a good step forward in the battle for marriage equality. However, there are some aspects of the decision that I find disturbing.

The essence of the decision was essentially this: while same-sex marriage is not a fundamental right, prohibiting it runs afoul of the Equal Protection clause in New Jersey’s constitution. As such, while same-sex couples should have the right to the benefits of marriage, they do not have an accompanying right to have those benefits called “marriage.” The legislature was therefore directed within 180 days to either include same-sex couples in its marriage statutes, or draft a duplicate set of guidelines that provides the same rights as marriage but calls it by another name (e.g., “civil unions.”)

My first concern is on the issue of same-sex marriage not being a fundamental right. A fundamental right is one that is deeply rooted in history and traditions. Marriage itself is universally considered to meet that test. However, the New Jersey Court ruled that while marriage may meet that test, same-sex marriage does not and therefore cannot be considered a fundamental right.

That’s putting too fine a point on it. Why not simply focus on the issue of marriage itself? Same-sex marriage is nothing but one type of marriage, and it’s the issue of marriage itself that ought to have been addressed. An analogy lies in Loving v. Virginia, the US Supreme Court case that struck down bans on interracial marriage. In that case, the Supreme Court could have said “well, marriage meets the fundamental right test, but inter-racial marriage does not and therefore it should not be considered the same.” That’s not what the Court did in that case. Instead, it re-affirmed that marriage itself was the issue, that it is a fundamental right, and that inter-racial marriage was simply a form of the protected right itself. It wasn’t something separate or different. I don’t see why the same logic doesn’t apply on the issue of same-sex marriage.

While this may sound like a nitpick, it’s actually very important. Once a right is found to be fundamental it is extremely difficult for the government to impinge on it in any way–it may do so only to meet a compelling state interest in a way that’s narrowly tailored to meet that interest. That’s a really hard standard to meet…as opposed to the much squishier standard applied under equal protection logic, which in New Jersey meant simply a balancing of the importance of the right versus the need for governmental restriction (a test the court said New Jersey failed to meet in opposing same-sex marriage). While the end result is the same, my belief is that the declaration of a fundamental right would have been a much stronger statement for future courts in other places to weigh when deciding what to do.

The second concern I have is the willingness of the court to send the matter to the legislature, even if it’s with a directive to craft some kind of equal marriage rights. This smacks of the whole “let the legislature decide the issue” argument that conservatives often put forward, knowing fully well that when any proposed minority right is presented to a majority that it is likely to strike it down. Rights are all about protecting minorities against the predations of majorities. It would have been unconscionable to “leave it to the legislature” to decide whether segregation was right or not, whether interracial marriage was right or not, whether “one-person-one-vote” was really in place or not, and so on. The “leave it to the legislature” argument is one that conservatives use to adopt a false veneer of tolerance when they are fully aware and approve of the final outcome. Same goes for the protest about “activist judges”–the justices who decided Brown v. Board of Education would surely have been called “activist” by any measure, and yet today we could not fathom their having decided the case any differently. There would be no social progress without these so-called “activist judges”, who are really judges brave enough to think outside the box–and yet they cause consternation to conservatives because they’d really rather “leave it to the legislature.” In ruling as it did, the New Jersey court seemed to kowtow to some of this logic by giving the legislature some element of choice over something that, as I argued before, should be a fundamental right not subject to a vote

My last concern is with the court’s willingness to let the legislature adopt a “separate but equal” system of marital-type benefits and then call it something other than marriage. If something smells, looks, and acts like a rose then it should be called a rose instead of catering to people’s “sensitivities” about it, which is what the unstated purpose of this provision seems to be. History has shown that “separate but equal” is never equal.

Overall, I give kudos to the court for its bravery in the current political climate, although it would have been better if the court’s language in defense of marriage equality had been stronger. One victory at a time…

The Total Information Awareness blog pointed out something that had previously escaped my notice: that GOP senators Kyl and Graham attempted to deceive the Supreme Court in its recent Hamdan v. Rumsfeld decision striking down Bush’s decree to try Guantanamo detainees through military commissions in contravention of the Geneva Conventions and international law.

The story is rather complex (and is explained fully here), but boils down to this: These two senators passed a Senate resolution amending the previously passed Detainee Treatment Act that, among other things, would have denied the Supreme Court jurisdiction over both pending and subsequent federal habeas corpus appeals. Other senators (especially Senator Levin) expressed concern over such a move, indicating that extending the amendment to pending appeals would invalidate the Court’s jurisdiction over the Hamdan case, which had been approved for review by the Supreme Court. An amendment was passed to the original amendment, redrafting the effective date so as to suggest that pending appeals would not be affected.

Congress’s “legislative record” includes comments made on the floor when passing legislation. It is intended to help future interpreters of laws (such as the courts) determine Congress’s frame of mind when passing the law in question. In this case, the legislative record made clear that Senator Levin felt that the amendment did not apply to pending cases, thus leaving Hamdan alone. Senators Graham and Kyl wanted others’ cooperation, so they said nothing more on the floor.

Later, they baldly inserted into the legislative record a conversation that never occurred. In it, Sens. Graham and Kyl go back and forth, indicating their interpretation as co-sponsors of the final amendment was that it would in fact apply retroactively to any pending cases, and that the Supreme Court should evaluate its lack of jurisdiction over Hamdan when it decided the case. In other words it was the exact opposite of the agreement they had officially made on the floor with Senator Levin and others.

When the time came for the parties in Hamdan to submit supporting briefs, Sens. Kyl and Graham submitted an amicus curiae brief supporting the Government’s contention that the Supreme Court had no jurisdiction to hear the case. In that brief they referred back to their false Congressional record in attempting to persuade the Court. They shamefully and blatantly lied about what had actually transpired on the floor of the Congress. The Government’s own brief also referred to this false exchange. Thankfully the Court was not deceived when it ruled, but neither did it reprimand the Senators in the interests of maintaining cordial relations. When these two Senators tried to re-submit their brief a month later at the US Court of Appeals for the DC Circuit, Slate’s Emily Bazelon reports that court “issued an unusual order rejecting” their amicus brief even though they accepted several others.

To what depth will the GOP sink in handing over the reins of liberty to an overreaching Chief Executive? We are a society of laws, and Hamdan correctly pointed out that even the president is subject to them and not above them. He is not a monarch. While the issue here may seem arcane, at the end of the day it’s about the executive and legislative branches abrogating their responsibility to uphold the Constitution by deceptively attempting to remove an entire area of civil rights jurisdiction from the courts.

Do these senators have no shame?

The New York Court of Appeals has ruled against finding a right to gay marriage in that state. In doing so it contorts itself into legal knots by drawing narrow distinctions. It also shows itself completely devoid of courage to redress a wrong that is past due to be made right.

What follows is a summary of each major argument in Samuels and Gallagher, et. al., v. New York Department of Health, and my response.

1) Denying marriage to same-sex couples is “rational.”

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not…It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples…The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more…

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. It is obvious that there are exceptions to this general rule…but the Legislature could find that the general rule will usually hold.

Response:

How exactly does excluding gay couples from marriage “promote stability” for procreating? Does Adam and Steve living down the street from Jake and Jenny do anything to de-stabilize J&J’s relationship? Does it somehow impugn it, or make it less? Does it distract them or make them jealous? Does it cause them to beat their children? Why is it that A&S promote instability for J&J but their good divorced friends Rich and Rachel do not do the same?

Opponents of same-sex marriage keep deriding the issue as one that denigrates the stability of the family, focusing on the ONE thing that has never been proven to de-stabilize the institution of marriage. When it comes to divorce, or money problems, or the outrageous cost of housing, or gang violence in schools, or teen-aged pregnancy, or spousal/child abuse, they are all strangely silent.

If promoting heterosexual marriage exclusively as a means of enhancing procreation is really valid, then why not prohibit senior citizens from marrying? How about people who never intend to have children? People who have been sterilized to prevent future pregnancies? Clearly this argument descends into the realm of the ridiculous. Check out the court’s feeble attempt to explain away this inconsistency:

While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing.

In other words, the argument doesn’t apply because taking it to its rational conclusion would not be expedient. That’s right–the rights of an entire group of people should be denied because to apply the rule even-handedly (limiting marriage to childbearing couples of any orientation) is not expedient.

Notice also how the court tries to frame itself as progressive by citing the possibility that the legislature “might” find that heterosexual unions might be more unstable for raising children than same-sex ones and might therefore justify heterosexual-only marriage that way. I’m sorry, but you can’t put lipstick on this pig by saying that heterosexuals might actually need greater protection than their same-sex counterparts and thus deserve an exclusive right to marriage. Give me a break.

2) There is no violation under New York’s or the federal substantive due process clauses.

In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is “deeply rooted in this Nation’s history and tradition”…The right to marry is unquestionably a fundamental right…The right to marry someone of the same sex, however, is not “deeply rooted”;…The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage…

Here, there are, as we have explained, rational grounds for limiting the definition of marriage to opposite-sex couples…Plaintiffs here do not, as the petitioners in Lawrence [v. Texas] did, seek protection against State intrusion on intimate, private activity. They seek from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples. We conclude that, by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right.

Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests.

Response:

Notice the court’s circular reasoning: “As we have explained, there are rational grounds for not recognizing gay marriage. Therefore, there is no fundamental right to gay marriage, because there are rational grounds for not recognizing it.” That’s like saying, “If X, then Y; therefore X is true.” Did these judges go to law school?

There are many fundamental rights recognized that are not “deeply rooted in tradition.” This is true of privacy. It is true of the right to use contraceptives. It is true of abortion. It is true of intimate sexual relations between partners of either gender. The court copped out by drawing a razor thin distinction between same- and opposite-sex marriage instead of focusing on the right itself in question: the deeply rooted fundamental right to marry the person of your choice.

Additionally, as brave Chief Judge Kaye’s impassioned dissent correctly pointed out:

fundamental rights [like marriage], once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a “new” right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.

3) There is no violation under New York’s or the federal equal protection clauses.

Plaintiffs claim that the distinction made by the Domestic Relations Law between opposite-sex and same-sex couples deprives them of the equal protection of the laws. This claim raises, first, the issue of what level of scrutiny should be applied to the legislative classification…We resolve this question in this case on the basis of the Supreme Court’s observation that no more than rational basis scrutiny is generally appropriate “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement”…Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate.

Response:

Applying one standard is appropriate in certain cases, but applying a more relaxed one is OK in other cases arbitrarily chosen? How is marriage qualitatively less important than, say, discrimination in the workplace? In the case of laws that classify by race, where courts apply an almost impossible to meet “strict scrutiny” standard, courts have never said “well it’s ok to classify by race sometimes, but not in others.” You don’t change the standard to apply based on convenience. You pick one and stick to it.

4) Failure to recognize same-sex marriage by the legislature is rational and valid because there was no intent to intentionally discriminate.

Nor does the statutory scheme create a classification based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a classification that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient to establish an equal protection violation…Plaintiffs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent — the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians.

Response:

In making this last statement, the court passingly compares the case to Romer v. Evans, the Supreme Court case that invalidated a Colorado initiative that would have banned gay anti-discrimination laws in Colorado. That initiative was found to be motivated solely and intentionally by irrational anti-gay prejudice rather than any legitimate government interest. This court concluded that the marriage issue was different from Romer’s because the marriage law was not intentionally discriminatory against gays and lesbians.
Judge Kaye’s dissent made short work of this argument, also using Romer:

Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself… Romer v Evans, 517 US 620, 633 [1996]). Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State’s interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.

5) The majority-elected legislature should decide whether to extend marital benefits to same-sex couples.

Response:
How often we forget that our constitutional protections such as those found in the Bill of Rights are to protect political minorities from the predations of majorities. Time and again, courts have taken bold stands on behalf of disenfranchised groups despite the wishes of majority-elected legislatures: slavery, de-segregation, interracial marriage, voting rights, abortion, and privacy to name a few. Had these issues been left to legislatures I suspect there are still parts of the country that would uphold these various types of discrimination today.

It’s so easy and so hypocritical to look back at these rulings and call the courts “courageous” when they made them, and yet accuse them of being “activist courts and judges” when they attempt to do the same thing today with remaining areas of invidious discrimination.

“Leave it to the legislature” is nothing but a cop-out. The one case where a legislature approved same-sex marriage was in California, which was then promptly vetoed by the Governor. You just can’t win.
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The same-sex right to marry in Massachusetts has shown that the world will not come to an end if gay marriage is allowed. Children will not go hungry, they will not end up abused, divorce rates will not increase. Life simply goes on as normal. Other countries such as Spain have fully embraced same-sex marriage, and they too have suffered no negative consequences for their families. These facts, more than anything else, demonstrate the hollowness of today’s opinion and the lack of spine shown by this court.

Word is that Georgia’s top court also handed down a ruling today, re-instating a gay marriage ban there. I would expect that out of Georgia, but I’m disappointed in New York. Hopefully New York’s citizens will pressure their legislature to stop treating their gay and lesbian neighbors as second-class citizens.