Lets Go Girl

May 17, 2008 by Kingston

You have probably heard that Ellen DeGeneres and Portia de Rossi are getting hitched, since the California Supreme Court decided this week there are enough marriage licenses to go around:



I am sure my invitation is in the mail. However, it will be conditional. It is conditional because some people are attempting to stay the California Supreme Court's decision to open Pandora's Box of Hell. These are the same people who know that even though Ellen is America's sweetheart, Jesus would slit her throat if he was on the scene.

They want it stayed until there is a vote on a measure attempting to amend the California constitution to prohibit this godless practice. But, as I mentioned yesterday, that ship has sailed.

I know there are some folks that are genuinely and sincerely concerned. But, by and large, most people are just tired of the gay baiting. And even if it doesn't sit quite right with them— this year most people have a lot bigger worries—like being able to pay their bills.

There are also some who claim not to be against same sex marriage—but think it should be up to the people. They do not seem to realize that the whole purpose of the third branch of our government is to protect minorities from the tyranny of the majority.

Fortunately, since the Fourteenth Amendment was specifically designed to protect the rights of slaves and their descendants—all courts, except some of the gomers in the Deep South of the day, knew it was impossible for a state to amend its constitution so that it specifically kept colored people in their place.

If not for the Constitution and the courts, who knows how long it would have taken America to grow up.

However, the Fourteenth Amendment (and the state versions of it) does not specially mention African-Americans— it gives every single person the right to be treated equally under the law. And actually that is implied in the constitution as originally drafted.

Whenever something of significant value is at stake, the government must have a “compelling state interest” in order to treat citizens differently. The California Supreme Court agreed with the “family values” people that marriage and family are fundamental values—and then said they could not find any compelling state interest that would justify treating same sex couples and families any different than anyone else.

It has been necessary for the courts. which have ruled against same sex marriage, to get quite creative. They claim the government has a compelling state interest in promoting and licensing propagation. That is, of course, just a pretend reason—no license is required to procreate—and almost half of children are born out of wedlock. And no one has suggested that childless marriages be automatically annulled.

The California and Massachusetts Courts have actually been quite rational and traditional in their application of Constitutional Law. The other courts have been “activist” in using a novel legal theory to reach the result they want.

Anyway, the genie is out of the bottle, and though there will be much wringing of hands, it will slowly subside when the sky does not come tumbling down.

Eventually everyone will discover there is nothing more fun than a lesbian wedding.

In the meantime here is a sappy rom noir video scrapbook dedicated to Ellen and Portia:




“De” girls will make nice brides.

And I do hope the California ballot proposal, which would prohibit anyone named Anne Heche from getting married, is approved.



P.S.--John McCain has been busy trying to clear up some ethical issues, and hasn't had time to weigh in on the initiative to amend the California constitution and end all this nonsense.

But, I am more interested in how everyone's boy wonder, Barack Obama, is going to deal with it. Obama has painted himself into a corner on the issue, not knowing that the Justices of the California Supreme Court would jump out and say “Boo.”

What makes it interesting, is that the case really only decided if there is anything in a name. California already had a domestic registry, which conferred all of the same legal benefits upon same sex couples if they filled out the proper forms.

The Supreme Court said that , in this case, a name matters.

Obama, like Hillary Clinton, is against gay marriage and in favor of civil unions. So on this one he really should be with the Catholic League and the Forum on the Family folks, who are attempting to amend the California constitution to define marriage as a union between a man and a woman. It will not effect the statutory domestic registry.

So this will make the cool candidate sweat.

Will he be consistent and try to win favor with some of the “bitter people” by throwing gays and lesbians under the bus—with the position that it would be fine if the masses nullified a landmark civil rights decision?

Or will he do a flip flop?

So far we have this from the campaign:

"Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage."

If I wasn't so wishy washy I think I'd run for public office.

But the gay press is not going to be satisfied with that answer—and this will irritate Obama.

Will he continue his long, self-imposed moratorium on talking with the gay press?

And some of you lawyers or constitutional scholars might be interested in helping me out on this one. I am wondering whether the initiative, if passed, will stick.

In 1964 the California Supreme Court found a housing scheme to be unconstitutionally racially discriminatory. The bigots got together and passed an initiative seeking to amend the Constitution to get discrimination back in the Constitution. Both the California and the US. Supreme Courts ruled that the state and federal constitutions prohibit that kind of crap.

Let me know what you think.

~Becky
Posted in Barack Obama, Californa, California Supreme Court, Ellen DeGeneres, GLBT, LGBT, Portia de Rossi, constitution, constitutional law, gay marriage, gay rights, lesbians, marriage, same sex marriage  | Comments (1)

May 10, 2008 by Kingston

One way old moribund industrial towns in the rust belt, and Northeast, attempt to gain new life is to encourage the development of upscale watering holes. It works quite well. The old rotting warehouses are converted into chic clubs. Then boutiques and sandwich shops move in. Before long overpriced artist flats and hip urban condos are constructed.

But inevitably the deep rooted American guilt complex begins to nag, and some start to question how the Lord will look upon a community that is revitalized on the back of sin. Then everything gets all divisive, and the city fathers (and mothers) find themselves in a pitched battle with God's appointed spokespersons for the soul of the community.

It's all really stupid—but if you think it can be resolved without going to federal court you must be new to this country.

One of the loopholes in our secular constitution is the state's ability to monitor and impose morality thorough the regulation of alcohol. After prohibition was repealed, the states were, rightly, permitted to regulate booze in any way they wished. Some localities went, and still are, dry. Almost all had silly blue laws that did such things as prohibit the sale of liquor on Sunday.

It was common to give Churches the right to veto liquor licenses in their proximity—or outright prohibit the sale of six packs within spitting distance of a church. In America it has generally been assumed that the Lord and Liquor do not mix (Catholic social events excepted).

In the decaying resort town of Long Branch, New Jersey the state mandated segregation of boozers and bible thumpers has resulted in the persecution of a church.

Long Branch zoned an entertainment district. The rules prohibited construction of a church in the area, since state law would then prohibit construction of dens of inequity—and defeat the whole intent. There would just be continued urban blight, broken up by a few churches and soup kitchens.

So when the Lighthouse Association of Evangelicals wanted to set up shop in Long Branch, they were told to pack their Bibles and keep on trucking.

But the god fearing do the same as everyone else does in America these days—they got a lawyer.

For seven years the case has been winding its way through the federal courts. The issues are the Free Exercise Clause of the First Amendment and a special law passed by the godly Republican Congress in 2000 called the Religious Land Use and Institutionalized Persons Act, which was designed to ensure that land use planners don't dezone God.

Last December the Third Circuit basically told Long Branch they were good to go—throw out the saints and get down.

The case is now sitting on the steps of the US Supreme Court.

Is this inane or what? In America we certainly should not be prohibiting Churches, but we should not give them the legal authority to dictate what other people wish to do on their private property.

If anyone had an ounce of sense in New Jersey, the statute giving the Upright veto power over liquor sales would just be repealed. We'd have the Lighthouse Church and Dance Clubs all doing their own thing. Everyone would be happy—except the lawyers.

But common sense never prevails when what is really needed is a long session on the couch to resolve the schizoid bipolar nature of the American Soul.

The Supreme Court will probably have no real choice but to accept review of the case, since the Circuits are split on the issue.

However, Supreme Court decisions are a poor substitute for therapy.


Posted in First Amendment, Free Exercise Clause, RLUIPA, Supreme Court, alcohol, blue laws, constitution, eminent domain, land use planning, property rights, religion, urban renewal, zoning  | Comments (0)

May 7, 2008 by Kingston

Yesterday John McCain was trying to woo the conservative base of his party, which is a good idea since in the North Carolina primary 27 percent of Republicans (23% in Indiana) voted against the guy, even though he has a lock on the nomination.

McCain promised to appoint "conservatives" to the Supreme Court, saying that his
“ nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power."

Cool—but I wonder if he will appoint a justice inclined to overrule McConnell v. FCC, where the Supreme Court upheld the McCain-Feingold Act, which was the single greatest abridgment of free speech since the Civil War—giving political speech less protection than burning the flag.

I don't think that Honest John is much of a reader, but it would be a good idea if he took a look at The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom .

In the book, Robert Levy and William Mellor explain why Alexander Hamilton was wrong when he opined that the Judiciary was the weakest of the three branches of the federal government.

The book is about twelve Supreme Court cases that changed the course of American history by expanding the power of the federal government far beyond that enjoyed by King George , and gutting the civil rights and liberties which were the reason we fought a revolution.

One of the profiled cases is McConnell v. FCC.

I wonder if a President McCain would want a Justice who would overrule Wickard v. Filburn which stands for the proposition that under the interstate commerce clause the federal government can regulate virtually anything, which now includes turning a terminally ill patient into a criminal for using medical marijuana, grown and distributed in a single state, taken under a doctor's prescription, in accordance with state law.

Or does McCain favor federalists of convenience, like Antonin Scalia—who are always able to find the inherent drug or national security exception to the Constitution?

How about Bemmis v. Michigan? The Supreme Court allowed a wife to lose her half interest in the family car in a civil forfeiture proceeding because her husband had used the vehicle as a convenient place to get a blowjob from a hooker.

While McCain is, at best, a johnny come lately to the view that Roe v. Wade should be overturned, it is not at all clear that he understands that the reason is because the Constitution has absolutely nothing to say about abortion—not because he might be personally against abortion, or many of the voters he is wooing are.

I rather doubt that a President McCain will appoint a justice willing to take on Home Building & Loan Association v. Blaisdell where the Supreme Court decided that when the drafters of the Constitution wrote "No State shall ... pass any ... law impairing the obligation of contracts" they meant essentially the opposite.

Or how about the Japanese internment cases, which stand for the “national security exception” which was the rationale for holding Jose Padilla, an American citizen, in a military brig for years without bringing criminal charges.

Would he have the courage to appoint a justice who was at least willing to chip away at Helvering v. Davis , and the rest of the New Deal decisions which, through the “general welfare” clause, gave the federal government unlimited power to tax, spend and control every nook and cranny of an individual's life.

Honest John ticked off liberals because they don't care what the Constitution says when it comes to their pet projects. He pleased the type of people who nowadays consider themselves “conservatives” because he was implicitly endorsing their two primary pet projects—no abortions and plenty of capital punishment.

I'd like to know John McCain's thoughts on The Dirty Dozen.



P.S.--A while back I discussed the connections of Honest John's in-laws with the mob in Arizona. Interestingly, yesterday, in describing the types of justices he would appoint to the Supreme Court he mentioned "my friend" William Rehnquist, who prior to his appointment to the bench, was the lawyer for McCain's father-in-law, John Hensley, in one of the criminal cases brought against him in Arizona.

~Becky

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P.P.S--I received a couple of emails arguing that pointing out McCain's deficiencies, when it comes to the constitution and the Supreme Court, was counterproductive since his appointees would be so much better than anyone Obama or Hillary would appoint.

Perhaps-but it is not a given.

Besides, as is so often the case with Democrats, what is the point of even talking about it? Obama ,as a constitutional scholar, has a view of the constitution similar to Larry Tribe, and one I do not share--as discussed here. However, I would prefer having a president who has taught constitutional law and has respect for it, rather than one like Bush who believes the document is outdated and irrelevant.

And is openly admitting an interpretative changing organic view of the Constitution any worse than being a Federalist of Convenience or Discoverer of First Amendment Exceptions --or some kind of political hack with a law degree who hates abortion, but feels the constitution does not apply to investigations of terrorism or put any restraints on the president's powers in fighting it?

Scalia joined in essentially junking federalism in the medical marijuana case. Roberts eviscerated the First Amendment in Bongs 4 Jesus (a case where the amicus briefs of the Christian fundamentalist organizations urged the court not to carve out the "drug promotion" exception to free speech--since it was the kind of precedent assbag school administrators would start using to censor Christian kids).

But, we are deluding ourselves if we honestly believe that any Justice, appointed by either major party, will attempt , in any significant way, to undue the most dangerous line of cases--the ones decided by the New Deal Court, which gave the go ahead in creating the type of federal monster we are now stuck with.

Today Obama appeared on CNN's Situation Room and Wolf Blitzer asked him to name the type of Supreme Court Justices he liked--he mentioned Ginsburg, Souter and Breyer--you can draw your own conclusions on that--it is not necessary to do any deep analysis.

~Becky
Posted in John Mccain, Libertarianism, Republicans, Supreme Court, The Dirty Dozen, conservatives, constitution, constitutionalist, federal government, federalism, freedom, law, liberals, liberty  | Comments (0)