Daily Archive: 06/30/2015

Jun 30 2015

SCOTUS Puts Hold on Closing Texas Abortion Clinics

In a late announcement Monday afternoon, the Supreme Court stayed a decision by the United States Court of Appeals for the Fifth Circuit, which imposed limits on a woman’s right to choose. In a 5 -4 decision, the court allows Texas abortion clinics to remain open.

The Supreme Court issued a brief, two paragraph order (pdf) on Monday permitting Texas abortion clinics that are endangered by state law requiring them to comply with onerous regulations or else shut down to remain open. The order stays a decision by the United States Court of Appeals for the Fifth Circuit, which imposed broad limits on the women’s right to choose an abortion within that circuit.

The Court’s order is temporary and offers no direct insight into how the Court will decide this case on the merits. It provides that the clinics’ application for a stay of the Fifth Circuit’s decision is granted “pending the timely filing and disposition of a petition” asking the Court to review the case on the merits. The Court adds that, should this petition be denied, the stay will automatically terminate. Otherwise, the stay “shall terminate upon the issuance of the judgment of this Court.”

Justce Anthony Kennedy joined the liberal judges to grant the clinics a reprieve. The court has yet to decide if they will hear arguments in the case in the fall.

Jun 30 2015

Punting the Pundits

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

Follow us on Twitter @StarsHollowGzt

Richard H. Pildes: At the Supreme Court, a Win for Direct Democracy

IN 2000, voters in Arizona adopted a state constitutional amendment that created an independent commission to draw congressional districts. But the commission immediately faced a legal challenge: the United States Constitution gives the power to state legislatures (and to Congress) to regulate national elections – not to the voters. Can the word “legislature” in the Constitution mean voters themselves?

That question eventually came before the Supreme Court, which on Monday ruled, in a 5-to-4 decision, that the Constitution permits states to let their voters use “direct democracy” – popular votes on ballot measures, known as voter initiatives – to regulate the rules for national elections. [..]

The Supreme Court often surprises critics who see it in simplistically ideological terms. As this term and this decision confirm, the current court remains a pragmatically minded institution that interprets legal language with an eye toward the problems that language was created to address. As a result, direct democracy will remain available to constrain partisan gerrymandering and other ways legislatures seek to manipulate democratic purposes for self-serving reasons.

Scott Lemieux: If execution by torture isn’t ‘cruel and unusual’ punishment, what is?

You might think that the Eighth Amendment, which forbids “cruel and unusual” punishments, clearly prohibits death penalty regimes like those currently in effect in Oklahoma: unqualified and inexperienced personnel trying experimental drug regimes that have a substantial likelihood of inflicting serious pain before death. But, if you know anything about the Roberts Court, you won’t be surprised to discover that they disagree. In a 5-4 decision written by Justice Samuel Alito (appropriately, as he’s the current justice with the very worst record on civil liberties) the US supreme court gave the green light to Oklahoma’s method of death (pdf).

Late last year, Oklahoma horrifically botched its execution of Clayton Lockett, effectively torturing him for 40 minutes before he died (and blocking him from view from observers midway through). Its system for lethal injection relies on a three-drug cocktail, the formula invented (entirely arbitrarily) by the Sooner State itself in 1977: two of the drugs stop the heart but, as Justice Sonia Sotomayor explained in her dissent to the majority ruling, “they do so in a torturous manner, causing burning, searing pain.” The first drug, then, is supposed to be a barbiturate that renders the condemned prisoner unable to feel pain (although, since the second drug is generally a paralytic, it’s not really possible to tell if it works). Oklahoma, however, has been unable to obtain any of its usual drugs for the first step of the process, and has thus resorted to an alternative that carries the substantial risk of producing death by torture.

Nonetheless, to a bare majority of the court, Oklahoma’s system is good enough for the Eighth Amendment, based on a series of scientifically weak defenses offered for the protocol by a single witness and the argument that the condemned prisoners themselves are required to offer the state a less risky method for their own executions. The state can, under Alito’s reasoning, torture people to death as long as it cannot procure the drugs needed for a safer, less torturous method.

David Cay Johnston: Egalitarianism is on the march

The fall of the Confederate flag is the latest step in a progressive wave of reforms

Bigotry is suddenly on the run in America.

It is as if a giant dam thrown up to block human progress has begun to spill over the top, the outpouring growing until the dam collapses, a flood of decency, fairness and respect washing the stains of discrimination, exploitation and oppression.

Before June 17, many Americans were already feeling revulsion towards our country’s legacy of white supremacy after seeing numerous cellphone videos of police attacking innocent blacks. Then Dylann Roof massacred nine worshippers at the Emanuel AME Church in Charleston, South Carolina. Suddenly and unexpectedly the vile nature of the Confederate battle flag, waved with pride by Roof in several photos released after the shooting, became obvious to so many people that within a week Southern politicians scurried away from that symbol of racist hatred.

This is just the beginning. We will see more positive change in the near future as those who solicit votes through fear and denunciation watch America move toward its founding ideals: that all people are created equal with inalienable rights and that America does best when our government follows the six noble purposes of our Constitution, especially promoting the general welfare.

Joseph Stiglitz: Europe’s Attack on Greek Democracy

The rising crescendo of bickering and acrimony within Europe might seem to outsiders to be the inevitable result of the bitter endgame playing out between Greece and its creditors. In fact, European leaders are finally beginning to reveal the true nature of the ongoing debt dispute, and the answer is not pleasant: it is about power and democracy much more than money and economics. [..]

It is startling that the troika has refused to accept responsibility for any of this or admit how bad its forecasts and models have been. But what is even more surprising is that Europe’s leaders have not even learned. The troika is still demanding that Greece achieve a primary budget surplus (excluding interest payments) of 3.5% of GDP by 2018.

Economists around the world have condemned that target as punitive, because aiming for it will inevitably result in a deeper downturn. Indeed, even if Greece’s debt is restructured beyond anything imaginable, the country will remain in depression if voters there commit to the troika’s target in the snap referendum to be held this weekend.

Alexis Goldstein and Luke Herrine:  Higher education reform should start with for-profit schools

Presidential candidates should recognize that the government’s education policy is rife with conflicts of interest

As the presidential campaign season heats up, Hillary Clinton and Bernie Sanders are talking about debt-free or tuition-free college. Using student debt as an issue to damage Republicans and to energize young voters is a smart strategy. But to make the case for why higher education should be free in the United States, 2016 candidates need look no further than the current crisis in the for-profit college industry. The government’s deep conflicts of interest as both the regulator meant to protect students and the banker profiting off student debt has led to an unmitigated disaster – one that, so far, has stuck students with the bill.

For decades, for-profit colleges have run an outrageously profitable scam: They have devoured more than a quarter of all federal student loan money and used it to lure first-generation college students into career training programs that lead to few, if any, real prospects. These schools often spend more money on marketing (pdf) than on instruction. As a result, employers laugh at for-profit college degrees. [..]

For-profit colleges perfectly illustrate why the privatization of public goods doesn’t work. It turns public servants into the guardians of private interests, and students are left behind as collateral damage. Politicians on both sides of the aisle proclaim education as the civil rights issue of our time. If that’s the case, it’s time to move past the model of individual indebtedness, which falls most heavily on poor and minority students, and show we value education for more than just talking points.

 

Jun 30 2015

LGBT Equality Fight Not Over

Another battle for equality for the LGBT community was won with the Supreme Court Ruling that gives them marriage equality in all 50 states. However, the war for equality has only just begun. As Scott Lemieux in The Guardian points out. “The language of the ruling means that states cannot discriminate against same-sex marriages. The same cannot be said for LGBT people as a whole – yet.” He discusses Justice Anthony Kennedy vague opinion that leaves the door open on other forms of discrimination

The problem with Kennedy’s judicial vagueness is that public officials and lower courts need to know whether classifications based on sexual orientation should be subject to heightened scrutiny, like those based on race or gender, or whether such classifications require only a “rational basis”, like economic regulation. If heightened scrutiny applies, states can only use sexual orientation classifications in law if it they are closely related to a compelling state interest – a test states usually fail. If states need only a “rational basis,” courts are generally very deferential to the state. After Friday’s opinion, it seems obvious that heightened scrutiny is being applied in practice, but Kennedy inexplicably refuses to say so. The refusal to define sexual orientation as subject to heightened scrutiny will lead to unnecessary confusion, and possibly permit federal and state judges to deny LBGT rights claims that even Kennedy might think should be upheld.

By not being more specific about his rationale for forcing all states to recognize and perform same-sex marriages, Kennedy leaves open the legal possibility that marriage is the only form of discrimination against same-sex people that is covered by the 14th Amendment. But LGBT people face many other types of discrimination – in public accommodations and in employment, for example – that now may have to be fought out case by never-ending case in the lower courts.

The LGBT community will now be focusing its energy on state laws that permit discrimination in housing, employment, commerce and the Transvestite communities special issues. To discuss those topics Democracy Now!‘s Amy Goodman was joined by Jennicet Gutiérrez, undocumented trans activist from Mexico and a founding member of Familia: TQLM and Marc Solomon, national campaign director of Freedom to Marry.



Transcript can be read here

Jun 30 2015

On This Day In History June 30

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

Click on images to enlarge.

June 30 is the 181st day of the year(182nd in leap years) in the Gregorian calendar. There are 184 days remaining until the end of the year.

On this day in 1986, the U.S. Supreme Court rules in Bowers v. Hardwick that states can outlaw homosexual acts between consenting adults.

Bowers v. Hardwick, upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled the decision in Lawrence v. Texas (2003), and held that such laws are unconstitutional. In overruling Bowers v. Hardwick, the 2003 Court stated that “Bowers was not correct when it was decided, and it is not correct today.”

Concurrences and dissents

The short concurring opinion by Chief Justice Warren E. Burger emphasized historical negative attitudes toward homosexual sex, quoting Sir William Blackstone‘s characterization of sodomy as “a crime not fit to be named.” Burger concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Opponents of sodomy laws criticized Bowers not only for its result but also because of the Court’s dismissive treatment of the liberty and privacy interests of gay men and lesbians. A sharply worded dissenting opinion by Justice Harry Blackmun attacked the majority opinion as having an “almost obsessive focus on homosexual activity.” Justice Blackmun suggested that “(o)nly the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.'” (Ironically quoting from the opinion by Chief Justice Burger in Paris Adult Theatre I v. Slaton which held that obscene films are not constitutionally protected)

Blackmun revealed in a 1995 oral history with Harold Koh that his dissent in Bowers v. Hardwick was written primarily by openly gay Pam Karlan (then a law clerk for Blackmun, and now professor of law at Stanford Law School). Blackmun said of the dissent; “[K]arlan did a lot of very effective writing, and I owe a lot to her and her ability in getting that dissent out. She felt very strongly about it, and I think is correct in her approach to it. I think the dissent is correct.”

Lewis Powell was considered the deciding vote during the case. He had initially voted to strike down the law but changed his mind after a few days. In a concurring opinion, Powell voiced doubts about the compatibility of Georgia’s law with the Eighth Amendment as it related to the prison sentence for conviction, but joined the majority opinion upholding the law against a substantive due process attack. It has been argued that Powell’s decision to uphold the law was influenced by the fact that he believed he had never known any homosexuals, unaware that one of his own law clerks was gay. In 1990, three years after retiring from the Court, Powell told a group of New York University law students that he considered his opinion in Bowers was an error. “I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments.” However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.

Aftermath

Bowers was decided at a time when the court’s privacy jurisprudence, and in particular the right to abortion recognized in Roe v. Wade, 410 U.S. 113 (1973), had come under heavy criticism and was in doubt. In this historical context, Bowers signaled a reluctance by the then-members of the Court to recognize a general constitutional right to privacy or to extend such a right further than they already had.

State sodomy laws were seldom enforced against private consensual conduct in the decades following the decision, but the Bowers decision was frequently cited in opposition to gay rights programs. The Georgia law upheld in Bowers forbade oral sex and anal sex whether engaged in by people of the same sex or different sexes, but Justice White’s decision was restricted to homosexual sex. “The only claim properly before the Court, therefore, is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.”

In the years after Bowers was decided, several state legislatures repealed their sodomy laws. In addition, a number of state courts invalidated sodomy laws under privacy or other provisions of their state constitutions. The same sodomy law that was upheld in Bowers was struck down by the Georgia Supreme Court under the Georgia state constitution in the case of Powell v. State, 270 Ga. 327 (1998).

The remaining state sodomy laws in the U.S. were invalidated, insofar as they applied to private consensual conduct among adults, in the Supreme Court case of Lawrence v. Texas 539 U.S. 558 (2003). Justice Anthony Kennedy wrote the majority opinion in Lawrence, ruling that Texas’ state sodomy law was unconstitutional under the Fourteenth Amendment’s due process clause (adult consensual sexual intimacy in ones’ home is a vital interest in liberty and privacy protected by the Due Process Clause). Lawrence explicitly overturned Bowers, with Kennedy writing “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Jun 30 2015

The Daily/Nightly Show (I’m not interested in their opinion)

Something that’s been clear for a very long time now

Tonightly It’s Big Gay Monday with the New York City Gay Chorus-

Our panelists are Janet Mock, Jordan Carlos, and Guy Branum.

Continuity

Religion and Science are not contradictory

This week’s guests-

Taylor Schilling is best known for her work in Orange is the New Black, but if you’re not a Netflix subscriber you’ve never seen it.  Do not forget however that she was also Dagny Taggart in Atlas Shrugged: Part I.

Richard Lewis’s web exclusive extended interview and the real news below.