Series on Same-Sex Marriage: Final Post

This will be the last post of my Series on Same-Sex Marriage. I decided to leave the legal aspects for the end because in about two months the Supreme Court of the United States will decide two very important cases regarding this subject, Hollingsworth v. Perry and United States v. Windsor. Even though these cases are very different, the first one deals with California’s Proposition 8 and the other one with the Defense of Marriage Act or DOMA, they are both related to same-sex marriage.

The court could choose a broad or narrow ruling in the first case. It can say that California cannot ban same-sex marriages, while leaving unanswered the question for other states or the justices can say that shunning same-sex couples from marriage violates the Equal Protection clause of the 14^th amendment of the constitution, this will mean that no state can deny homosexuals the right to marry. In the DOMA case the court only has to deal with a single federal law which prevents the federal government from recognizing same-sex marriage licenses issued by individual states.

In the first case the justices will probably take the easy way out and dismiss the case because it lacks standing or make a narrow ruling applying only to California, I don’t think any justice wants to tell Alabama it has to issue marriage licenses to homosexuals. Some of the justices expressed a sentiment shared by many people around the country, that this question should be solved through the political process not through the courts and that states should be the ones to decide. Same-sex marriage in California will, more likely than not, remain legal, regardless of the court’s decision.

The case of DOMA seems like it will be a victory for defenders of same-sex marriage. The federal government has typically stayed out the marriage issue. If a state decided to allow same-sex couples to marry then the federal government should recognize that union showing respect for state’s rights. This should be an appealing idea to the conservative members of the court who are known for their defense of state’s rights. Jeffrey Toobin seems to get this one right when he says that “DOMA is doomed!” The fact that DOMA was drafted with the intent of discriminating against homosexuals, this can be seen from the debates which took place in the House of Representatives before passing the law, makes it harder for the court to uphold it.

Is it the job of the SCOTUS to wonder if a law does harm or good to children, or if it will be seen differently in different parts of the country? From the oral arguments one gets the idea that it is their job. In my opinion the justices should not be concerned with these questions. The attitude I would like to see from the SCOTUS is one similar to that of Hawaii’s Supreme Court “Whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it… works well or works ill presents a question irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional.”

Whether I think banning same-sex marriage violates the Equal Protection clause or not is irrelevant, since the justices will decide these cases more on the basis of their own beliefs and ideology rather than on constitutional analysis.

The conclusion which can be reached from these two cases is that same-sex marriage is being accepted by more Americans everyday. The court has seen this trend and will probably think it wise to stay out of the debate. Letting opponents and supporters keep their fight in the political arena instead of bringing it to the legal one.

Supreme Court Listens to Arguments on First Same-Sex Marriage Case

Sandra Stier and Kristin Perry

by Carlos Diaz

Yesterday the Supreme Court of the United States (SCOTUS) heard arguments on the case Hollingsworth v. Perry. Listening to the hour twenty minute long argument was a pleasant experience for me, but I am aware that most people will find a better use to those eighty minutes, that’s why I decided to make a wholesome summary of the oral arguments adding some analysis and background to put the case in perspective for those who don’t know a great deal about this specific case.

This case is about California’s Proposition 8, a ballot initiative to include a ban on same-sex marriage in the California Constitution. The ballot initiative was approved by a majority of California voters in 2008, effectively banning same sex-marriage in the nation’s most populous state. After the ban was enacted, Kristin Perry and Sandra Stier were denied a marriage license in California because they were a same-sex couple. They decided to sue the State of California in federal district court in San Francisco because they considered that their rights had been violated. The district court overturned Proposition 8, stating that the referendum was unconstitutional because it violated the Fourteenth Amendment’s Equal Protection and Due Process clauses. The case ended up in the Ninth Circuit Court of Appeals upheld the district court’s decision on Equal Protection grounds. Supporters of the proposition then asked the SCOTUS to review the case and the court granted certiorari.

The first ten minutes of yesterday’s oral arguments were spent discussing whether or not the defendants, led by Dennis Hollingsworth, had standing to argue this case in front of the Court. The reason so much time was spent on this question is simple. The State of California was supposed to be the defendant in this case since it was the one who denied the marriage license. The problem was that neither the Governor nor the Attorney General of California believed the law in question was constitutional so they refused to defend it. Mr. Hollingsworth, who was a main proponent of the law, then decided to take the role of the state. Justice Ruth Bader Ginsburg reminded Charles Cooper, counsel for the defendant, that the SCOTUS had never granted standing to proponents of ballot measures, to this Mr. Cooper replied that this was a special case.

Mr. Cooper expressed what he believed to be the essential question of this case: Whether the SCOTUS should put an end to the democratic process of each state deciding to allow same-sex marriage or not?

Cooper then went on to argue that the state’s principal interest in marriage is “regulating” procreation. Turning the institution of marriage into a genderless institution could harm the use society has “always” given marriage, argued Cooper. When questioned by Justice Elena Kagan, Cooper answered by saying that changing the legal definition of marriage will have real-world consequences and some of the consequences would be “adverse.” Cooper proceeded to say that this issue is too new to know what the consequences of it could be and that California should not act until it can assess what the consequences have been in Massachusetts –the first state to legalize same-sex marriage in the Union. These ambiguous responses by Cooper caused Justice Antonin Scalia to comment that there are concrete facts regarding this issue, such as the disagreement which exists among sociologists on whether raising a child with two parents of the same sex is harmful to the child. Justice Ginsburg then addressed Justice Scalia directly saying the raising of children by same-sex couples is already legal. Justice Scalia called her comment “irrelevant” because of the national scope of this case. Justice Stephen Breyer attacked Cooper’s argument about procreation head on by saying that in California people who are sterile, but not gay get married all the time. Cooper then said that allowing gays to marry would change the focus of marriage from procreation to the “emotional needs and desires of adult couples.” Justice Kagan showed how this already happens, for example when two people over the age of 55 get married. Cooper made a rather bizarre comment, saying that it was very rare that both parties to such a marriage would be sterile, this produced audible laughter in the court.

Almost ten minutes were also spent when it came time for the plaintiff’s counsel to present. Ted Olson was counsel for the plaintiffs, but he did not seem particularly interested in the issue of standing.

When Chief Justice John Roberts allowed him to move to the merits of the case he said that marriage is an individual right and therefore cannot be denied to consenting adults. Justice Scalia then asked Olson: When did it become unconstitutional to exclude homosexual couples from marriage?  Olson replied with two questions of his own. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” Justice Scalia did not enjoy the questions, but answered “when the Equal Protection Clause was adopted.” Justice Samuel Alito asked Olson if the court should decide for all fifty states on this issue. Olson, with the help of Justice Sotomayor, explained that the court could decide only for California or for the whole country.

Then came the turn of United States Solicitor General, Donald Verrilli, who participated as amicus curiae–friend of the court. Mr. Verrilli’s main argument was that the court should impose same-sex marriages in states, like California, that have taken significant steps in the area of gay rights, but not in those states which have not done anything about gay rights. Some justices were not happy with this approach, Justice Alito asked Verrilli: “why should the court allow same-sex marriage in some states, but not in others?” Verilli answered, “because in states were gay couples can adopt children, but can’t marry the government is denying those children the “stabilizing” effect provided by marriage.”

When time for rebuttal arrived, something strange happened, Justice Anthony Kennedy asked Mr. Cooper: Why should the court decide this case now? Justice Scalia then jumped and said it was too late for that since the court had already granted certiorari.

Oral arguments can be misleading in forecasting how the SCOTUS will rule, but judging by everything surrounding this case it seems like the outcome will be positive for supporters of same-sex marriage.

Two outcomes seem most likely. First, the court will declare that the defendants have no standing, leaving the district court’s ruling in place. The other scenario is that the court will drop the case if they can’t find enough consensus to render a decision. What will most likely happen with any decision is that the court will limit this ruling to California only. This will be a victory for advocates of gay rights and will not cause widespread indignation in the public, something which could happen if the court extended its decision to all fifty states.

P.S: Today the court heard another case related to gay rights. I believe Defense of Marriage Act (DOMA) case will be much easier for the court to decide because of its homophobic roots. 

 

Dirty Warriors Played an Important Role in Iraq

James Steele meeting with Adnam Thabit (Head of Iraqi militias)

by Carlos Diaz

The Iraq War was officially culminated more than a year ago. As in other conflicts, this is the time when the truth about violations of human rights and other form of misconduct should be sought. The United States government is currently prosecuting Bradley Manning for the release of classified material while he was in Iraq. Since the government is prosecuting Manning for a crime which I consider victimless, it should be prosecuting, or at least investigating, some grave accusations against people like former defense secretary Donald Rumsfeld and one of his closest advisers in Iraq, retired Colonel James Steele.

The British newspaper The Guardian recently released a documentary it produced with the BBC titled “James Steele: America’s Mystery Man in Iraq”[i]. The aim of this short documentary is to show how the United States funded a deadly paramilitary force in Iraq which was largely responsible for a civil war that, at its peak, was leaving 3,000 bodies in the streets each month. The American government not only funded this force but it provided it with trainers and advisers, chief among them was civilian retired Colonel James Steele. The story of Mr. Steele is relevant because he was one of the American soldiers training the army of El Salvador on counterinsurgency (COIN) tactics during that country’s bloody civil war in the 1980’s, a war which took more than 75,000 lives and became known as a dirty war due to the tactics employed by what became known as death squads trained by Steele. He became the chief American COIN expert on the ground in El Salvador, this allowed him to meet many people who later would seek his expertise. One of these people was the man in charge of COIN strategy in Iraq David Petraeus who stayed at Steele’s house in El Salvador during the 1980’s.

The connection to the dirty and brutal war in El Salvador is no secret. In a debate before the 2004 election vice president Dick Cheney touted El Salvador as a success story that should be applied in both Afghanistan and Iraq[ii]. A few months later journalist Peter Maas wrote an article which appeared in The New York Times Magazine titled “The Salvadorization of Iraq?”[iii]The article mentions Mr. Steele in particular.

Mr. Steele was aware of the violations being committed by the militias he and General Petraeus deemed necessary and helped fund. According to documents released by Wikileaks, James Steele had a direct channel of communication defense secretary Donald Rumsfeld. The militias were accused of the torture and killing of many, including innocent people. In some cases the American forces transferred prisoners to these militias who answered only to the Iraqi interior ministry. Army medic Neil Smith said “everybody knew and nobody cared” referring to the treatment of prisoners by the Iraqi militias.

Some people had hoped that the Obama administration would investigate this and other allegations. But these charges have been ignored in the same way that in the past violations committed by Henry Kissinger and the Nixon White House were ignored by the subsequent presidents. President Obama said this soon after being inaugurated for the first time, “nothing will be gained by spending our time and energy laying blame for the past.” This is an extremely despicable statement from someone as smart and knowledgeable as the president is believed to be. If we follow this reasoning we will arrive at the conclusion that the Nuremberg Trials were a waste of time, also the current military style trial of Khalid Sheikh Mohammed and his associates, and, for that matter, any other case that seeks to offer clarification to events in the past.

The Pentagon says it is investigating these allegations, although it is hard to believe it is looking into the matter unless the president changed his mind. Trying American officials in the International Criminal Court (ICC) is next to impossible because the “world’s greatest country” is not a party to the International Criminal Court. The reason the United States refuses to join the ICC or dig deeper into accusations of Americans violating human rights is simple. Every administration is protecting its own interests. If the Obama administration prosecutes or allows people like Steele to be prosecuted, what will stop a foreign country or a future administration to do the same to one of its members? For example, John Brennan could be tried for his participation in the use of drones which have killed many people, including innocent civilians.

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[i] http://www.guardian.co.uk/world/video/2013/mar/06/james-steele-america-iraq-video

[ii] http://www.youtube.com/watch?v=-nkIF6WHlek

[iii] http://www.petermaass.com/articles/the_salvadorization_of_iraq/

The Importance of Bradley Manning’s Case

By Carlos Diaz

  Private Bradley Manning has been held in a military prison in Virginia for more than 1,000 days. His crime was releasing classified documents to Julian Assange’s organization, Wikileaks. He had a hearing last week, which gives us an insight into how the case might be decided. The actual trial has been postponed until June of this year. Manning’s case raises many important questions about our government’s respect for freedom of the press and protection of whistle-blowers.

  There was an article published in The New Republic[i] past Friday by Harvard Law Professor Yochai Benkler which warns about the dangerous conclusions which might emanate from the Manning case. Professor Benkler begins by recalling a scene from the hearing Thursday in which the Judge asked the prosecutor “Would you have pressed the same charges if Manning had given the documents not to Wikileaks but directly to the New York Times?” to which the prosecutor answered “Yes Ma’am”. This raises the issue of the role and protection of whistle-blowers in an open society like the one Americans claim to live in. This answer settles two questions, one that Wikileaks is a news organization and secondly that Manning does not deserve any protection as a whistleblower.

  The most serious charge Manning is facing is that of “aiding the enemy” if convicted of this charge he could face the death penalty, something which the prosecution is not seeking but which the judge could opt for. This begs the question of: Who is the enemy? Manning provided the information to Julian Assange who until then was not an enemy of the United States. Does this mean that if any government employee civilian or military blows the whistle on what he/she considers to be government misconduct, they should be charged with “aiding the enemy? Some might claim that Bradley Manning’s case is exceptional because he was an active member of the armed forces and is therefore brought to trial under the Uniform Code of Military Justice. The weak spot of this argument is that Section 104 of this act which deals with “aiding the enemy” applies to “any person”.

  This administration in particular seems to have an obsession with punishing whistle-blowers. A recent New York Times article[ii] details how the Obama administration has used the Espionage Act to charge government officials who have spoken out about incidents, considered minor by some, but which contain information which could potentially embarrass the administration. In fact the Obama Justice Department has charged more people for leaking information than all previous administrations combined.

  In making a decision regarding Bradley Manning’s actions the judge should consider what kind of precedent her decision will create. Manning’s information exposed things like the government’s understating of civilian casualties in Iraq and Afghanistan and abuses made to the government by civilian contractors. Will this be considered “aiding the enemy”, even though it was given to an amateur news organization which in turn gave it to more professional organizations?

  The mere fact that an “enemy” has access to news sources should not allow the government to restrict what information can or cannot be published or to punish those who make the information available. I would agree with the government’s actions if it could be proven that information provided by Manning and other whistle-blowers did in fact produce any significant physical damage or helped the enemy in any material way.

  Maybe it is best to quote Orwell in this case “Freedom is the right to tell people what they do not want to hear”.

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[i] http://www.newrepublic.com/article/112554#

[ii] http://www.nytimes.com/2012/02/27/business/media/white-house-uses-espionage-act-to-pursue-leak-cases-media-equation.html?_r=0