November Elections

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Re: November Elections

Postby Rico » Wed Dec 22, 2010 4:22 pm

Guinness Fan wrote:^^ Wow Carlos, you're right...there's a few that would DEFINITELY make C-Span prime time viewing...

Maybe that's why the GOP snagged 31% of gay voters in this midterm election, compared to the 19 percent in 2008. Those who constantly say gays tend to be shallow might be right after all! Time will tell.

Edited to add this: Texas is the state to watch. The Texas GOP platform calls for the reinstatement of anti-sodomy laws and even goes further by stating:

We believe that the practice of homosexuality tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God,...

I understand why financially comfortable gays might vote Republican. But if the Republicans get their wish...and Lawrence v. Texas is overturned by a conservative Supreme Court...then all the money in the world won't save financially comfortable gays from criminal prosecution for having a dick where it doesn't belong.
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Re: November Elections

Postby olywaguy » Wed Dec 22, 2010 9:53 pm

The Congress doesn't appoint Supreme Court justices, the President does. The U.S. Senate, however, ratifies the appointment. Democrats still have control of the Senate but they might have to do a lot of convincing. President Obama has already named two Supreme Court justices just this year (Elena Kagan and Sonia Sotomayor). Based on his choices, looks like he wants to bring gender equality to the court. Currently, there are three women in the Supreme Court. At this time, the most senior justice is Antonin Scalia who was nominated by President Reagan.

Someone in CNN stated that the reason for the 4 seats for Texas was due to an increase in the Hispanic population. He thought those districts might go Democratic. But, being Hispanic myself, a lot of Hispanics tend to conservative, so we shall see how it works out. The problem is the governor. If the governor is of either party, they will want to favor their party in the redistricting. The new redistricting maps have to approved by the U.S. Attorney General so there is a check there.
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Re: November Elections

Postby UnRepublicanstraightactor » Thu Dec 23, 2010 2:08 am

Rico wrote:But if the Republicans get their wish...and Lawrence v. Texas is overturned by a conservative Supreme Court...then all the money in the world won't save financially comfortable gays from criminal prosecution for having a dick where it doesn't belong.


Uh... no. Come on now. Let's save the red herrings. Absolutely no Supreme Court, even if it was made up of nine Scalitos would overturn Lawrence v. Texas at this point. Let's not be disingenuous now. There's plenty of actual threats that we can point to as reasons why gays shouldn't vote Republican than something like that. For example even gay Republicans have been known to be fired from their jobs -- or blamed for what someone else did when something goes wrong. Let's look at the Enron debacle, for starters. Which is exactly why ENDA should be the next legislative priority, but that will never happen under the current House of Reps composition.
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Re: November Elections

Postby Rico » Sun Dec 26, 2010 7:27 pm

UnRepublicanstraightactor wrote:Uh... no. Come on now. Let's save the red herrings. Absolutely no Supreme Court, even if it was made up of nine Scalitos would overturn Lawrence v. Texas at this point. Let's not be disingenuous now.


It's not disingenuous. I’m glad you’re so confident and I hope you’re right as well about Lawrence v. Texas never being overturned.

I’ve been around long enough to see things happen in this country that I would never have thought possible. Just one example: I was raised in a strong anti-communist environment…i.e. “better dead than Red.” I remember being taught in elementary school about the communists: Their government has cameras set up on all the roads and in all the public squares to watch its citizens. The government can open private mail without warrant. The government listens in on phone conversations and monitors other private conversations without warrants. Their government encourages citizens to report on one another when they suspect suspicious activity. The list goes on.

Does any of that sound familiar….like much of everyday America today?

So as far as “this or that will never happen” or “it can’t happen here” thinking….I no longer buy it. Anything is possible.
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Re: November Elections

Postby UnRepublicanstraightactor » Mon Dec 27, 2010 11:37 am

Rico wrote:
UnRepublicanstraightactor wrote:Uh... no. Come on now. Let's save the red herrings. Absolutely no Supreme Court, even if it was made up of nine Scalitos would overturn Lawrence v. Texas at this point. Let's not be disingenuous now.


It's not disingenuous. I’m glad you’re so confident and I hope you’re right as well about Lawrence v. Texas never being overturned.

I’ve been around long enough to see things happen in this country that I would never have thought possible. Just one example: I was raised in a strong anti-communist environment…i.e. “better dead than Red.” I remember being taught in elementary school about the communists: Their government has cameras set up on all the roads and in all the public squares to watch its citizens. The government can open private mail without warrant. The government listens in on phone conversations and monitors other private conversations without warrants. Their government encourages citizens to report on one another when they suspect suspicious activity. The list goes on.

Does any of that sound familiar….like much of everyday America today?

So as far as “this or that will never happen” or “it can’t happen here” thinking….I no longer buy it. Anything is possible.


I understand that you feel this way after watching the Bush administration in action but keep in mind that the amendment to put a gay marriage ban in the constitution didn't even pass during the height of all that, and that was much more prominent a threat that had much more public support at the time than reinstating sodomy laws does today or any time in the future, in which there will be less and less support for that kind of thing. If the kind of things you were fearing were going to happen, they certainly would have during the Bush years, and they never did.
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Re: November Elections

Postby nimby » Thu Feb 17, 2011 10:42 am

wanna bet?

Iowa House passes constitutional ban on same-sex marriage
By Jason Hancock | 02.01.11 | 3:30 pm | More from The Iowa Independent View Comments Share127A constitutional ban on gay marriage, civil unions and domestic partnerships passed the Iowa House Tuesday afternoon 62-37. Democratic Reps. Dan Muhlbauer, Brian Quirk and Kurt Swaim joined 59 Republicans in support of the measure. Thirty-seven Democrats voted “no,” and one Republican was absent.

The legislation, House Joint Resolution 6, was the subject of nearly three hours of debate with only two lawmakers speaking up in support. The rest, all Democrats, denounced the bill as nothing more than writing prejudice and discrimination into the constitution.

“Here’s the funny things about rights — they’re not supposed to be voted on,” said state Rep. Bruce Hunter (D-Des Moines).

House Minority Leader Kevin McCarthy (D-Des Moines) worried about how history will judge Iowa lawmakers who vote in support of revoking marriage rights for same-sex couples.

“Many years from now we’ll look back on this debate and we’ll regret it,” he said.

After discussing his belief that marriage is about “responsible procreation,” state Rep. Rich Anderson (R-Clarinda) asked what could come next if the 2009 Iowa Supreme Court decision that legalized same-sex marriage is allowed to stand. He concluded that it would lead to legalized polygamy and incest.

“If we remove the gender requirement for marriage, there is no rational basis to define the number,” he said. “So we open up the possibility of the constitutional recognition of polygamous relationships. That’s a slippery slope. And I don’t know where the logic is to draw the line. We wouldn’t recognize incestuous relationships between two consenting adult brothers and sisters. That raises up within us disgust, and we can’t accept that. We draw lines. We define marriage.”

Some of the most impassioned testimony came from state Rep. Beth Wessel-Kroeschell (D-Ames), who argued that Iowa has long been ahead of the rest of the nation in recognizing the rights of minorities.

“Iowa is a special place. We have been ahead of the nation many times when it comes to civil rights. Here we are again; we are ahead of much of the nation. I am proud of the role we play to lead our nation in civil rights again,” she said.

“In the 1967 case, Loving v. Virginia not only ended the ban on interracial marriage but declared that marriage is one of the basic civil rights,” Wessel-Kroeschell continued. “In a representative democracy, we must not only vote the will of our constituents, but we must also do our homework, and sometimes we need to ignore the polls and do the right thing. This is one of those cases. We need to be on the right side of history, vote for equality and justice for all and vote no on HJR 6.”

Two outspoken opponents of marriage equity — Republcian state Reps. Glen Massie of Des Moines and Rep. Kim Pearson of Pleasant Hill — took the highly unusual step of refusing to answer questions in defense of the constitutional amendment when requested by Democratic state Rep. Nathan Willems of Lisbon. Willems eventually got state Rep. Erik Helland (R-Johnston) to discuss whether the Equal Protection Clause of the Iowa Constitution applies to everyone except for gay couples, with Hellend concluding that there is a fundamental disagreement on the issue.

Carolyn Jenison, executive director of the LGBT-rights group One Iowa, said the amendment “devalues families and divides Iowans.”

“The Constitution is meant to protect the freedoms and liberties of all Iowans,” she said after the bill passed. “It is inappropriate to use the political process to single out and deny a group of Iowans of their constitutional protections.”

In order to become law, the amendment must now pass in the Democratic-controlled Iowa Senate, where Majority Leader Mike Gronstal, a Council Bluffs Democrat, has vowed to block it. If it succeeds there, it must be passed by both the House and Senate again in 2013 before it can be placed on the ballot.
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Re: November Elections

Postby UnRepublicanstraightactor » Thu Feb 17, 2011 10:55 pm

nimby wrote:wanna bet?


If you're making this posting in direct reference to my most recent posting:

a) Your argument is a tad on the facetious side. Iowa is far from the first state that has put a ban on gay marriage in their constitution and as you know I was referring to a ban in the federal constitution. Neither is a good thing, but the federal ban is infinitely that much worse, and despite any disingenuousness on this topic, if you reread my posting I was making the point that even during the Bush years, that never made it through. In fact, I will bet you that even the Republican-controlled federal House of Reps won't touch that in Congress.

b) Rico was talking about Lawrence v. Texas. Do you have any news articles on that being reinstated by judicial fiat any time soon?

c) The Iowa house is now controlled by Republicans, so this is expected. The Iowa state senate is still controlled by Democrats.

I'm not going to say that this doesn't suck, of course, but with all due respect you're comparing apples to oranges.


If you were making some general point that just happened to coincide with me being the last person to post in this thread, then ignore this as nothing other than a bit of "It-sucks-but-we're-not-at-Nazi-level-so-be-vigilant-but-not-hysterical" to add to this thread.
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Re: November Elections

Postby Rico » Fri Feb 18, 2011 8:19 pm

UnRepublicanstraightactor wrote:b) Rico was talking about Lawrence v. Texas. Do you have any news articles on that being reinstated by judicial fiat any time soon?

I think I cleared that up earlier. The overturning of Lawrence v. Texas is not imminent and it certainly won't be by fiat. When the time is right, it will be overturned deliberately by an even more conservative Supreme Court than we have now.

I never thought I'd see the day when a majority of the American people would routinely accept warrant-less searches and seizures, wiretaps, government eavesdropping, cameras in the public squares, and and all other kinds of Soviet-style intrusions into the private lives of their citizens. If you asked me 20-30 years ago whether that could ever happen here, I would have responsed "Impossible!" Now it's all routine.

Given the already announced Democratic retirements in the Senate, and the probability that the Republicans will not only gain a majority there but a super-majority (i.e. 60)...and if they get the White House....nothing is off the table. Not even Lawrence v. Texas.

Sure, it's not going to happen tomorrow, or next week, or even next year or the year after that. But I'm convinced that it's a strong possibility if the Republican political cards fall in the right way.
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Re: November Elections

Postby UnRepublicanstraightactor » Sat Feb 19, 2011 12:35 am

Rico wrote:
UnRepublicanstraightactor wrote:b) Rico was talking about Lawrence v. Texas. Do you have any news articles on that being reinstated by judicial fiat any time soon?

I think I cleared that up earlier. The overturning of Lawrence v. Texas is not imminent and it certainly won't be by fiat. When the time is right, it will be overturned deliberately by an even more conservative Supreme Court than we have now.


The time will never be "right" for such a thing.

I never thought I'd see the day when a majority of the American people would routinely accept warrant-less searches and seizures, wiretaps, government eavesdropping, cameras in the public squares, and and all other kinds of Soviet-style intrusions into the private lives of their citizens. If you asked me 20-30 years ago whether that could ever happen here, I would have responsed "Impossible!" Now it's all routine.


Apples and oranges.

Given the already announced Democratic retirements in the Senate, and the probability that the Republicans will not only gain a majority there but a super-majority (i.e. 60)...and if they get the White House....nothing is off the table. Not even Lawrence v. Texas.


Then why didn't it happen when the Republicans, not to mention Bush, were well in control? Why, instead, did it go the other way, and it got overturned... all under Bush and total Republican rule?
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Re: November Elections

Postby Rico » Sat Feb 19, 2011 4:53 am

The time will never be "right" for such a thing.


I hope you're right at least in my lifetime. Even if it is overturned, it was not my point to say that anti-sodomy laws would be reinstated all over the place. Overturning the decision would simply leave it up to the individual States. I can see only 1 or 2 at the most even attempting it.

Apples and oranges.

True, but it's the comparison that usually comes to mind when I hear anybody say "That can never happen" about almost anything.

Then why didn't it happen when the Republicans, not to mention Bush, were well in control? Why, instead, did it go the other way, and it got overturned... all under Bush and total Republican rule?


Good question. I don't know the answer and don't want to speculate.
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Re: November Elections

Postby nimby » Sat Feb 19, 2011 11:38 am

UnRepublicanstraightactor wrote:Apples and oranges.


I think it's more like Granny Smith and Golden Delicious. When something is a constitutional right, whether it be Federal or State, since when it it up for debate? Or better yet, just change the constitution? Even if it was just Iowa, does that seem right to you?

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Re: November Elections

Postby UnRepublicanstraightactor » Sat Feb 19, 2011 4:11 pm

Rico wrote:
Then why didn't it happen when the Republicans, not to mention Bush, were well in control? Why, instead, did it go the other way, and it got overturned... all under Bush and total Republican rule?


Good question. I don't know the answer and don't want to speculate.


Not to sound arrogant, but I *do* know the answer, which is why we keep having this disagreement.

What we're currently witnessing is two phenomenon going on at the same time. We're seeing a trend towards increased civil rights, especially with every new generation. Talk to the youth in this country, and the overwhelming majority are either in favor of gay rights or they don't care. There are exceptions but they are in the minority. However the youth have also become very apathetic in general and so will not take much of a stance in favor of fighting for civil liberties, especially in the post 9/11 climate. Anyone at odds with these two positions will seem out of step with the culture of the new generations. The good news, on the civil liberties front is that the post 9/11 climate, as much of a beast as it is, is ultimately a temporary problem. The other piece of good news is, it will take an outrageous incident or scandal against civil liberties to reawaken people out of their apathy, but when such an incident happens, we will see people make progress on the oranges as well as the apples you sought to compare them to. But, just to reiterate, there is absolutely no movement towards taking away gay rights, especially as it is the civil rights issue of the moment, as civil rights issues go.
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Re: November Elections

Postby UnRepublicanstraightactor » Sat Feb 19, 2011 4:14 pm

nimby wrote:Even if it was just Iowa, does that seem right to you?


I already answered this question. It isn't right by any means, but I already told you that what we might see happen is things like this for a bit longer. What we won't see is an amendment to ban gay marriage in the federal constitution, which would be nearly impossible to reverse for another century if it were to happen to begin with, because that would mean that the overwhelming majority of Americans truly are against us to such an extreme that, for the first time, the federal constitution might just be used to take away rights for good, rather than give them. We saw how well that worked during prohibition, and thankfully no one's ever successfully managed that kind of thing again. The other thing we won't see is the federal courts going backwards on our issues. They're generally going in our direction. Those two developments leave the door open for a Supreme Court to, at some point, rather than reinstate Lawrence v. Texas as Rico hints at, to overturn all the state bans on gay marriage, as they did for interracial marriage with Loving v. Virginia. It will probably take about 15 years or so, but it will happen.
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Re: November Elections

Postby Rico » Sat Feb 19, 2011 6:09 pm

UnRepublicanstraightactor wrote:... But, just to reiterate, there is absolutely no movement towards taking away gay rights, especially as it is the civil rights issue of the moment, as civil rights issues go.

That statement made be wonder about where are all these gay rights? Take employment discrimination just as an example, because that's really the most important one and has a direct impact on one's ability to make a living.

Although federal government workers are protected from discrimination because of their sexual orientation, there are no federal laws protecting workers in private companies. Only 12 States have laws prohibiting discrimination because of sexual orientation in the workplace. Another eight states have laws against sexual orientation discrimination in public employment, but not private.

Seems to me as if we're arguing about losing something that we don't even really have! :?

Source for State data: http://labor-employment-law.lawyers.com/employment-discrimination/Discrimination-Against-Gays.html
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Re: November Elections

Postby UnRepublicanstraightactor » Sun Feb 20, 2011 12:20 am

Rico wrote:
UnRepublicanstraightactor wrote:... But, just to reiterate, there is absolutely no movement towards taking away gay rights, especially as it is the civil rights issue of the moment, as civil rights issues go.

That statement made be wonder about where are all these gay rights? Take employment discrimination just as an example, because that's really the most important one and has a direct impact on one's ability to make a living.

Although federal government workers are protected from discrimination because of their sexual orientation, there are no federal laws protecting workers in private companies. Only 12 States have laws prohibiting discrimination because of sexual orientation in the workplace. Another eight states have laws against sexual orientation discrimination in public employment, but not private.

Seems to me as if we're arguing about losing something that we don't even really have! :?


Sure, but as long as you weren't saying that *I* was saying that we have them all yet, as opposed to that we're moving in that direction. You can't argue that the repeal of Don't Ask, Don't Tell, which is in another thread I created, isn't a major step. By the way, that number 12 is absolutely wrong. The actual number is something like 20. I can list the states for you if you like and you can verify state-by-state, because these websites have often been updated at different times and don't have the most recent data.



OK, I looked at the list of states lawyers.com claims only ban discrimination in "public employment", and many of those states actually ban discrimination across the board:

On their list is Colorado, Delaware, Illinois, Indiana, New Mexico, New York, Pennsylvania and Washington.

Of those, all but Indiana and Pennsylvania actually ban discrimination across the board, so unless there are two more states that that website forgot to include (which i'm not ruling out), we have 18 states that ban discrimination against gays in the workplace so far. With another 32 to go. We've come a long way "baby", but even further to go. It's not as much of an uphill battle as it used to be, tho, at least.
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Re: November Elections

Postby UnRepublicanstraightactor » Sat Feb 26, 2011 9:26 am

Gay Marriage Seems to Wane as Conservative Issue

WASHINGTON — President Obama’s decision to abandon his legal support for the Defense of Marriage Act has generated only mild rebukes from the Republicans hoping to succeed him in 2012, evidence of a shifting political climate in which social issues are being crowded out by economic concerns.

The Justice Department announced on Wednesday that after two years of defending the law — hailed by proponents in 1996 as an cornerstone in the protection of traditional values — the president and his attorney general have concluded it is unconstitutional.

In the hours that followed, Sarah Palin’s Facebook site was silent. Mitt Romney, the former governor of Massachusetts, was close-mouthed. Tim Pawlenty, the former governor of Minnesota, released a Web video — on the labor union protests in Wisconsin — and waited a day before issuing a marriage statement saying he was “disappointed.”

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Asked if Mitch Daniels, the Republican governor of Indiana and a possible presidential candidate, had commented on the marriage decision, a spokeswoman said that he “hasn’t, and with other things we have going on here right now, he has no plans.”

The sharpest reaction came from Mike Huckabee, the former Arkansas governor, in an interview here during a stop to promote his new book, who called the administration’s decision “utterly inexplicable.”

A few years ago, the president’s decision might have set off an intense national debate about gay rights. But the Republicans’ reserved response this week suggests that Mr. Obama may suffer little political damage as he evolves from what many gay rights leaders saw as a lackluster defender of their causes into a far more aggressive advocate.

“The wedge has lost its edge,” said Mark McKinnon, a Republican strategist who worked for President George W. Bush during his 2004 campaign, when gay marriage ballot measures in a dozen states helped turn out conservative voters.

Mr. Obama’s move provoked some outrage, especially among evangelical Christians and conservative groups like the Family Research Council. In a statement Wednesday, Tony Perkins, president of the council, condemned the president’s decision as pandering.

But Republican strategists and gay rights activists said on Thursday that the issue’s power as a political tool for Republican candidates is diminishing. While surveys suggest that Americans are evenly divided on whether the federal government should recognize gay marriages, opposition has fallen from nearly 70 percent in 1996.

Prominent Republicans like Dick Cheney, the former vice president, and Barbara Bush, daughter of the former president, have defended the right of gays to marry. And Mr. Obama has been emboldened by the largely positive response to his recent, and successful, push for Congress to repeal “don’t ask, don’t tell,” the military’s ban on gays serving openly.

At the same time, the rise of the Tea Party movement, and the success that Republicans had last year in attacking Democratic candidates on economic issues, has pushed the debate over abortion and gay rights to the back burner.

“I don’t think this is the issue that it once was,” said John Feehery, a Republican strategist. “I think that the economic issues are so big that this one pales in comparison.”

In his first two years in office, Mr. Obama drew criticism from gay rights advocates who thought he was dragging his feet on their issues. Those same advocates see the shift as evidence that with an eye on the 2012 campaign, the president has calculated that the benefits of responding to his base outweigh the risks of upsetting conservatives who wouldn’t be voting for him anyway.

Among them is John Aravosis, the founder of Americablog.com, who in a 2009 blog post called the administration’s first legal brief in a Defense of Marriage Act case “despicable” and “homophobic.” Mr. Aravosis said on Thursday he is “much happier” with Mr. Obama, adding: “I think the gay community got to him. I’m not convinced we got to his heart, but I think we got to his political head.”

Others, like Kerry Eleveld, editor of EqualityMatters.org, a new Web site, say Mr. Obama appears to be evaluating the politics of gay rights issues differently since the positive response to the don’t ask, don’t tell repeal from people on the political left, many of whom have criticized him over issues like health care, climate change and immigration.

“He got this big bump from it in terms of the progressive base, and didn’t get a whole lot of heat, and I think that has given him a little more heart in feeling like L.G.B.T. issues aren’t as toxic as a lot of people have been painting them for the past 20 years,” she said.

While Mr. Obama has changed his legal position on the Defense of Marriage Act, his personal views on same-sex marriage — he opposes it, but favors civil unions — have not changed, the White House says.

A big question is whether they will. Mr. Obama has said his views are “evolving,” and some expect he will announce his support for same-sex marriage as he campaigns for re-election. But that could complicate Mr. Obama’s efforts to appeal beyond his liberal base.

“It’s still part of Obama’s record now,” said Kevin Madden, a Republican strategist, who has advised Mr. Romney. “It’s one where it looks like he’s changing his position.”


Link.
GOProud's board president Christopher Barron answers the question why he's a gay Republican: "I prefer my government smaller -- say the size it would have to be to fit comfortably in Terri Schiavo's hospital room."
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Re: November Elections

Postby Rico » Sat Feb 26, 2011 1:09 pm

Interesting article. There's one paragraph in particular I find rather misleading:

Others, like Newt Gingrich, the former House speaker, and Haley Barbour, the governor of Mississippi, took their time weighing in, and then did so only in the most tepid terms. “The Justice Department is supposed to defend our laws,” Mr. Barbour said.

Barbour's remark may be tepid, by what Gingrich said was far from it.

"I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job," said Gingrich. "His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent."

All this from a three-times married serial adulter. In the words of Joe My God: "Gingrich would like to remind everybody that that marriage is between one man and one woman whom you abandon riddled with cancer on her hospital bed while you fu** the sh*t out of your mistress whom you later marry and cheat on with a third woman while screaming with Godly moral outrage about the infidelities of the president."
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Re: November Elections

Postby UnRepublicanstraightactor » Sat Feb 26, 2011 2:11 pm

Rico wrote:Interesting article.


If you liked that one, maybe you'll like this one even more. The author here shares your belief about how bad things are, as well as your view on how long it's taking for things to be accomplished and your focus on future gains rather than current ones:

Your ENDA Ran Over My DOMA
Filed by: Dr. Jillian T. Weiss
February 24, 2011 9:30 AM

I was trying to come up with a snappy title for Part II of this posting on the U.S. Attorney General's announcement that the Obama Administration would no longer defend DOMA in court, (Bil has banned me calling anything "Part II" anymore as it's too boring). I was reminded about the old joke about the dispute between the Christian and the Buddhist, with the former complaining that "your karma ran over my dogma." Because the Holder DOMA Memo, as I have now dubbed it, is filled with sly, ironic humor, as shall soon be shortly revealed, I thought it only fitting to add some humor of my own.

As I explained yesterday, the Obama Administration's view of DOMA is that it should be subject to "heightened judicial scrutiny" under the equal protection concept embodied in the Fifth Amendment. Under the highest form of judicial scrutiny, known as "strict scrutiny," laws are usually found unconstitutional unless they have a really compelling reason.

Why does the Obama Administration think that DOMA should be subject to the stricter judicial scrutiny, thus making them unconstitutional?

Because of ENDA, among other things. Remember ENDA?


Oh, the irony of it. ENDA, the putative Employment Non-Discrimination Act, would have prohibited employment discrimination based on sexual orientation and gender identity. It was supposed to be first on the list of legislative accomplishments of the Obama Administration for the LGBT community, according to an early speech by a key Administration official. But it died a lingering death, with only whispers of support from the Administration here and there, while Don't Ask, Don't Tell repeal surged ahead, then behind, then ahead again. Trans people were particularly sensitive to this game, as ENDA definitely had the votes in the House, and probably enough votes in the Senate if the Administration would have twisted a few arms, and it would have protected trans people from employment discrimination, while even with Don't Ask, Don't Tell repeal, trans people are still banned from the military. O tempora, O mores, O conspiracy theories!

In any event, here is the marriage issue, again politically surging ahead of trans rights, about which I have certainly whined before, and will again. But I must admit that, upon seeing the devilish use to which the Holder DOMA memo put the denial of ENDA, fastening the undead coffin of evil marriage inequality with nails of ENDA, I was tickled.

More about that later. First, back to the memo, where further delicious ironies await us.

Standard of Review
Standard of review is a strange concept. As Projector Zoe Brain explained in her comment on Part I of this posting yesterday:

...It seems to me that the different levels of scrutiny can be described simplistically as:

Rational Basis - Discrimination is assumed innocent until proven guilty.

Intermediate - Discrimination is guilty if found so on the balance of probabilities

Strict - Discrimination is assumed guilty until proven innocent.

She is quite right in making an analogy to the standards of proof (beyond a reasonable doubt, preponderance of the evidence, etc.)

I have explained this before in regard to the case of a transgender employee, Vandy Beth Glenn, who was fired from her job as a proofreader with the Georgia legislature, on the basis of gender transition:

Now we get to a concept that has crossed the eyes of generations of law students: the "standard of review."

What this means is how much evidence do you have to have, and of what quality?

The "standard of review" is just like "burden of proof." In other words, you all know from watching TV that, in a criminal trial, the prosecution has to prove the crime, and not just a little bit. They have to prove it "beyond a reasonable doubt." That means that if jurors have any doubt in their mind that the defendant did it, any reasonable doubt, then the person has to be declared not guilty. The standard for reviewing the evidence is "beyond a reasonable doubt." It's a tough standard to meet.

By contrast, in a civil case, like one involving a personal injury or a contract, the standard for reviewing the evidence is "preponderance of the evidence," meaning that it's enough if the evidence shows that the charge is more likely than not. It's an easier standard to meet.

In a constitutional case, when the judges review the actions of a government official or the words of a law to decide if they violated the Constitution, the evidence must show that the classifications used by the Government are rationally related to a legitimate government purpose.

In other words, the Government can't just do crazy stuff and get away with it. It has to be related to some legit purpose.

But that's the minimum standard. It's easy to come up with some legit purpose. For example, "public safety" is the perfect catch-all. Just cite "public safety," mention 9/11, and the judges will stand up and salute pretty much every time. Government acts judged under the minimum standard of review are usually given the OK by the courts.

For certain kinds of Government actions, specifically those based on race, the U.S. Courts have been very suspicious since the 1950s. A lot of Southern States had laws making distinctions based on race, and they came up with some pretty ingenious justifications for them. So the courts said they weren't going to go with the minimum standard for cases like that. No siree, they were going to strictly scrutinize Government acts involving race, and look to make sure that those laws were narrowly tailored to meet a compelling government purpose.

Government acts judged under the strict scrutiny standard of review are usually found unconstitutional by the courts.

But the U.S. Supreme Court got very nervous about the standard of review used for Government acts based on sex and gender. After all, they didn't want to invalidate all such laws, because there is a significant difference between men and women. So they came up with an "intermediate" level of review.

In a sex discrimination claim under the Equal Protection Clause, the Government classification must be "substantially related to an important government objective."

The words of this formulation aren't the most important thing. The most important thing to understand about this "intermediate" level of review is that it pretty much allows courts to do what they want in terms of upholding or, conversely, invalidating the law. It's not a rubber stamp, but it's not an automatic reject button either.

Thus, the question before Judge Story was whether giving Ms. Glenn the boot was substantially related to an important government objective. In fact, some courts have said the government objective should not only be "important," but even "exceedingly persuasive." The law is a word game.

In other words, did Brumby [the manager] have a good reason for kicking Ms. Glenn [the employee] out? Not just any reason, but an "important" and "exceedingly persuasive" one, though it didn't have to be "compelling."

I have also explained "standards of review" using jello and asparagus, for those of you who would like a different analogy.

Until now, law that discriminated based on sexual orientation was judged on the lowest standard, meaning that as long as there is some possible hypothetical rationale for the law, it's OK. Thus, as long as there is some rational basis, any rational basis at all for DOMA, and that rationale furthers some legitimate governmental goal, DOMA is constitutional.

The Holder DOMA memo says that the Obama Administration believes that test is too low a standard for DOMA.

But why is it suddenly too low a standard? It was a perfectly fine standard, according to the Obama Administration as late as January of this year.

Sexual Orientation As a "Suspect Classification"
Achieving "suspect classification" is the holy grail of civil rights litigators. When a law discriminates based on a "suspect classification," like race, then the courts must scrutinize the law much more carefully, and that is likely to make such laws unconstitutional and unenforceable. The reason that race became a "suspect classification" is that it involved a discrete and insular minority, which tended to seriously curtail the operation of the political processes ordinarily to be relied upon to protect minorities. Are LGBT people a discrete and insular minority who don't have access to political process to protect them? Until now, very few courts have thought so.

But in the case of gender, the US Supreme Court has found that laws that discriminate against women on the basis of gender are subject to heightened judicial scrutiny. Women certainly aren't a minority; they're half the population. Nonetheless, the Supreme Court held that sex, like race, is an immutable characteristic determined solely by the accident of birth, which violates the basic concept of our system that legal burdens should bear some relationship to individual responsibility. Over the years, the test for "suspect classification" status has undergone mutation. The Holder AG Memo states the current test as follows. Follow along and see if you think this describes the LGBT community:

(1) Whether the group in question has suffered a history of discrimination;

(2) whether individuals exhibit obvious, immutable or distinguishing characteristics that define them as a discrete group;

(3) whether the group is a minority or is politically powerless; and

(4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's ability to perform or contribute to society.

The Holder memo says that each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. It mentions that there is a significant history of purposeful discrimination against gay and lesbian people by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today, thus satisfying prong 1 of the test above. "Indeed, until very recently, states have 'demean[ed] the[] existence' of gays and lesbians 'by making their private sexual conduct a crime,'" citing the famous 2003 case of Lawrence v. Texas, in which the Supreme Court struck down the sodomy laws.

You know, Justice Scalia saw this coming. He said that once society recognizes that gay people have a right to exist, that would create a slippery slope leading to recognizing that gay people have a right to get married. I am constantly amazed by the number of times I agree with Justice Scalia. (Legal eagles will note that I sleep with Justice Scalia's quote from Oncale about the evils of legislators under my pillow each night.)

Next, the Holder memo discusses the second prong of the test above, citing, amazingly, uber-conservative Judge Richard Posner's execrable book, Sex and Reason. As Bill Eskridge (if I may be so bold; we did chat for five minutes oncst), a professor at Yale Law School whose work truly deserves the title of "genius," has noted, Judge Posner "uncritically accepts the sociobiological story of men-as-hunters, women-as-breeders that has been largely discredited in the academic community." Prof. Eskridge was also struck by Posner's "fascination with male sexuality -- whether homosexual or heterosexual -- and lack of interest in, or insight into, female sexuality." He also noted that lesbians are virtually invisible in a book that seems preoccupied with gay males. What ticked me off most about Posner's book was that it explicitly analyzed dating and marriage as a series of stark economic calculations worthy of Mrs. Bennet. It's a truth universally acknowledged that a single man in possession of a brain like that must be in serious want of a date.

So imagine my joy when the Holder Memo cites Posner for the proposition that "a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable." There are many other works that could have been cited: Simon LeVay's work, for example, but no. It's Posner, the uber-conservative. Let the fundies fight against Posner! The fact that I find the man's work a bit lacking doesn't mean he's not incredibly smart and knows how to back up his points ten ways from Sunday.

The memo also cites the Don't Ask, Don't Tell repeal law as standing for the proposition that "it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination." This last proposition is surprising. It doesn't seem to be obviously related to prong 2 of the "suspect classification" test, which is about whether sexual orientation is an "obvious, immutable or distinguishing characteristic." I suppose that they threw it in there to counter the point that prong 2, as stated by the Holder memo, is broader than really warranted, and that there are lots of groups with obvious or distinguishing characteristics, like kleptomaniacs and circus clowns. (I'm not suggesting that these are appropriate analogies to sexual orientation, but rather are examples of "distinguishing characteristics," unrelated as they are to sexual orientation. Though I always did have my suspicions about Bozo.) To counter that obvious argument in advance, they are suggesting that the "fairness" of the discrimination is part of the equation, and that sexual orientation cannot be changed, only "hidden."

I have serious questions about the science that purports to declare sexual orientation an in-born characteristic, and I think many others do too. Thus, it is wise that the Holder memo does not go there with the likes of Simon LeVay. But that the characteristic is unchangeable I have no doubt, and, I think at this point in our society, very few rational individuals have any doubt of that either.

On to prong 3 of the Holder test. (Isn't legal reasoning exhausting? No wonder students are dropping like flies in my classes.But I do love it. And here's the ENDA part!)

Third, the adoption of laws like those at issue in Romer v. Evans (the striking down of the anti-gay Colorado constitutional amendment blocking anti-discrimination ordinances on sexual orientation), and Lawrence (the striking down of the sodomy laws), the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers."

Hoist on their own petard, the biter bit -- if you strike me down, Luke, I shall become more powerful than you can possibly imagine -- these sum up what's going on here. By managing to put the kibosh on the Employment Non-Discrimination Act, the Republican minority demonstrated, with considerable force, I might add, that the LGBT community doesn't actually have a whole lot of political power. Oh, we have more than we had ten, twenty, thirty years ago. But simple employment rights are denied us. To counter the argument that, "hey, the gays got Don't Ask, Don't Tell repealed and the hate crimes act signed into law," the memo goes on to note that it's not necessary to show that the group has zero political power. It uses an analogy to women's rights, wherein the Supreme Court noted that women had experienced historic discrimination and qualified for suspect class status, even though at that point they had received Title VII employment protections almost a decade earlier. The LGBT community doesn't even have employment protections, so we're in a worse position than women were when they were given suspect class status.

Don't get me wrong; I'm not at all glad that ENDA didn't pass. I'd much rather use my political power than rely on the fickle Constitution. And there is a counterargument to the Holder ENDA argument, found in the decisions of the early 1970's on sexual orientation discrimination, which said...but no, I'm not giving away any secrets. Go look it up. :)

The memo goes on to note that there are other federal Circuit Courts of Appeal that have not used suspect class status for sexual orientation. Indeed, none of those that have analyzed the matter have done so. But the memo notes that these were pre-Lawrence (the Supreme Court sodomy decision), and a lot of those decisions holding that sexual orientation doesn't deserve "suspect classification" relied on old law that's no good after Lawrence. In addition, some of those older cases denying suspect classification to sexual orientation also made points that "we do not believe can be reconciled with more recent social science understandings." That's a bit vague, but I do agree, and certainly this proposition can be backed up. It also counters the argument that recent decisions in favor of gay rights have used the lower "rational basis" standard for reviewing legislation. It notes that those decisions never actually came to a decision on whether the higher standard could or should be used, because they found that those laws failed even under the lowest standard. Thus, argues the memo, the fact that these courts applied the lowest standard isn't binding on either courts or the Obama Administration.

Some might quibble that the Administration could have done this before, even in federal Circuits where there is precedent to the contrary. After all, lawyers make arguments all the time, requesting that courts distinguish away what seems like binding precedents from higher courts, or rule that those binding precedents have been undermined by later, related developments in the law. The memo carefully counters this by noting that there is a difference between being able to make an argument, and considering that argument "reasonable." They could have made the argument, yes, but it was too difficult to back up and call it reasonable. I get it. I am not going to look a gift-horse in the mouth.

What Standard of Review Is The Obama Administration Calling For?
It's important to note that the Holder DOMA memo is not calling for the strictest standard of judicial scrutiny, the so-called "strict scrutiny" test. Under that test, proponents of the law must prove that the law serves a "compelling" governmental purpose, and that the law is narrowly tailored to achievement of that objective. Under that standard, almost no law discriminating on the basis of sexual orientation would be constitutional. Instead, the memo calls for the application of "heightened" scrutiny, sometimes called "intermediate" scrutiny. Under this middle-range test of constitutionality, the government must establish that the classification is "substantially related to an important government objective." It's a bit of a word game, but that is what the law is. This is similar to the standard used to analyze laws discriminating on the basis of sex (although that standard sometimes calls for an "exceedingly persuasive justification," a phrase not included in the Holder memo).

Under the intermediate standard, according to the memo, the justification for the law must describe "actual state purposes, not rationalizations for actions in fact differently grounded." This is important, because proponents of DOMA have come up with all sorts of rationalizations for the law that Congress, in its lengthy descriptions of why DOMA was needed at the time it was enacted, never used, and never apparently thought of. That's called "post-hoc rationalization," and it's a no-go under the intermediate scrutiny test. We saw this most recently in the California federal marriage litigation of AFER and Olson & Boies, where the legal team defending Prop 8 came up with all sorts of stuff about parenting deficiencies and teaching inappropriate sexual subjects to kids that had nothing to do with the reasons given for Prop 8 when it was originally proposed and enacted. This ties the anti-gay legal team with ropes of steel to the legislative record when DOMA was enacted, which is extremely thin in terms of reasoning that a modern court could accept.

As the memo notes, the legislative record of DOMA includes lots of moral and religious disapproval of gays and lesbians, which the Supreme Court, in other cases, has specifically said cannot under any circumstances form the basis for a law discriminating on the basis of sexual orientation. Thus, by noting that post-hoc rationalization may not be used, the memo effectively cuts short a lot of the hyperbole and rhetoric that came up in the Prop 8 cases.

None of this may convince the Supreme Court when this issue ultimately comes to it. After all, there's kind of a 5-4 split on the court in terms of conservative vs. liberal ideologies, although there's also a swing voter there who is often quite sympathetic to gay rights. But whether he'll go for the suspect classification reasoning is open to doubt. But this memo doesn't have to convince the Supreme Court. It simply needs to create a clear and logical argument for why the Obama Administration is declining to defend a U.S. statute in court, and answer the question "why now?" That it does, and quite clearly and concisely (as legal memos go).

Also interesting is that the memo distinguishes between "professionally responsible" arguments and "reasonable" arguments. In other words, a "professionally responsible" argument is one that a lawyer can make without the court calling it "frivolous" and imposing fines or jail time on the lawyer making it. The past Administration arguments defending DOMA were, apparently, non-frivolous ones. The Administration was not wrong for making such arguments (implies the memo). But even though there is a non-frivolous argument to be made in support of DOMA, such an argument is not a "reasonable" one. And here's the money quote:

Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional", as is the case here.

This is quite the blockbuster statement. Until recently, the President has never said that DOMA was unconstitutional, only that it was discriminatory. The implication was that he considered it constitutional, although the Administration was careful never to say so directly. Here at last, the President says that DOMA is an unconstitutional law. Wow.

Lastly, the memo notes that an argument is due in the Windsor and Pedersen cases on March 11, 2011. Boeher, et al. have about two weeks to get their pencils sharpened and their briefs ready.

And a delicious end to the memo:

Please do not hesitate to contact us if you have any questions.

Sincerely yours,

Eric H. Holder, Jr.
Attorney General


Source link.
GOProud's board president Christopher Barron answers the question why he's a gay Republican: "I prefer my government smaller -- say the size it would have to be to fit comfortably in Terri Schiavo's hospital room."
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