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Prop H8 and 9CA

[ 9 ] August 8, 2010 |

Vikram Amar has a good piece about the recent holding that Propoistion 8 is unconstitutional and the 9th Circuit Court of Appeals. The most important point, I think, is that if the 9th Circuit decides to reverse the Supreme Court will probably decline to hear the case. In addition to the more legalistic reasons cited by Amar, I’d add that neither of the Court’s distinguishable 4-vote blocs (charitably assuming that the Court’s four more liberal members would actually vote to uphold Walker’s opinion, and remembering that if you think that Roberts is anything but an orthodox conservative you are the sucker) could be confident enough in Kennedy’s vote to risk going all-in. On the other hand, I think if anything he understates the likelihood of an opinion upholding Walker’s ruling being reviewed by the Supreme Court. Not only would this create a right to same-sex marriage throughout the nine states of the ninth circuit but it would lead immediately to federal lawsuits in every other state where same-sex marriage is illegal. It’s inevitable that the Court would want to step in immediately, as in that scenario the 4 doctrinaire reactionaries on the Court would have no reason not to grant cert unless it was certain that Kennedy would vote to strike down Prop 8 (and there’s no way it would be certain.) Because of all this, the forthcoming 9th Circuit decision will indeed be one of substantial historical importance.

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This is Not the President Lincoln You’re Looking for…

[ 4 ] August 8, 2010 |

How do you feel about states’ rights, Mr. President?

From Media Czech.

Milk Snatching in the UK

[ 5 ] August 8, 2010 |

has been avoided for the 21st Century, in a comical manner.

Last night as I went to sleep, I was informed by BBC Radio 4 that the coalition government was going to eliminate free milk for the under five set as it did not “provide value for money”.  At £50 odd million, it’s not very expensive, and while I doubt that it makes a huge difference in terms of public health, it does allegedly teach good dietary habits.  But, I immediately recognized the scale of the political blunder.

In grasping free milk from my daughter’s delicate hands, the government, rather stupidly, invoked the image of “Margaret Thatcher, Milk Snatcher”, when Thatcher did the same for 7 to 11 year-olds as Education Minister in the early 1970s.  The last thing that David Cameron would want is a direct and valid comparison with Thatcher.

Hence, a classic U-turn, clumsily executed.

Tony Judt

[ 6 ] August 7, 2010 |

R.I.P.

Only some are available free, but his reflections on living with ALS — like most of his writing — were terrific.

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Marriage Is A Sacred Institution Consisting Of One Man, One Woman, A Congressional Aide, Some Lobbyist He Met In A Bar, Two More Women…

[ 11 ] August 6, 2010 |

Serial non-monogamist Newt Gingrich shares some pompous thoughts about how teh gays and their Ed Meese-approved radical allies in the federal courts are destroying the Sacred Institution of Marriage, but leaves comments open.   Hilarity ensues.

Lessons About Globalism From Phuket

[ 7 ] August 6, 2010 |

Current Intelligence has published some ruminations of mine from my trip to Phuket last month. Lead paragraph follows:

Though I definitely passed through customs and back, it’s hard to know whether I traveled to a country called Thailand these past two weeks or whether I was actually just in one of those many outposts of globalization where a multi-national cacophony of Western tourists connect superficially with caricatures of a place’s pre-globalized culture.

At the invitation of an old friend who largely controlled the itinerary, I found myself on beaches and in bars, on dive boats and in spas, but never far from the American muzak and English-language-dominant service industry of Patong, never forced to navigate or speak in a local tongue, dis-incentivized to take seriously local governance, culture and politics except where it could be commodified, and mostly encouraged to have fun instead of thinking or talking too much about the place in which I found myself.

Full essay here. I am on the road again this next two weeks, so beyond reviews of travel books I may post in the next few days, blogging will be light.

The Kennedy Question

[ 25 ] August 6, 2010 |

I outline some reasons to be skeptical about whether Kennedy would be willing to cast a fifth vote to hold bans on same-sex marriage unconstitutional here. At a minimum, there’s no reason to simply assume that “[t]here are 5 votes for a constitutional right to same-sex marriage.” The typically overrated assertions of America’s most overrated justice notwithstanding, it wouldn’t be remotely difficult for Kennedy to distinguish Lawrence and Perry if he wanted to do so. It might be different if Lawrence had been based on equal protection, but the fact that it was a privacy case gives him an easy exit route. All he would have to do is point to the status quo on abortion, in which the state cannot ban abortion but can exclude abortion from medical funding, although the central purpose of the Hyde Amendment is to obstruct the exercise of a constitutional right. And there are other important contextual differences between this case and the major liberal (or half-liberal) rulings Kennedy has joined: upholding Perry would have a much larger policy impact and have significantly less public support. It’s possible that Kennedy could provide a fifth vote to uphold Perry, and it was shrewd of Walker to cite Kennedy as much as he could, but on the basis of what we know I would definitely bet against it.

One thing I didn’t address is the possibility that there could be some way of upholding Prop 8 without creating a national right to same-sex marriage (in a manner similar to the way Romer ruled Colorado’s Amendment 2 unconstitutional without explicitly overruling Bowers.) I’m very skeptical about this, in part because it’s hard to see any way of invalidating Prop 8 that wouldn’t apply to other same-sex marriage bans (whether or not the Court makes that explicit.) One intriguing possibility suggested by a commenter is that Prop 8 could be considered irrational because California already grants all of the material benefits of marriage, so refusing to apply the title of marriage to same-sex unions is just raw discrimination that the Court ruled unconstitutional in Romer. I don’t know if Kennedy would buy it, but it’s a clever argument. But the problem is that — like conservative attempts to have the insurance mandate ruled unconstitutional — it would be very much a “be careful what you wish for” outcome. Because it would create a perverse incentive for states that don’t want to recognize same-sex marriage rights to keep their marriage regimes as inequitable as possible in order to avoid a challenge under Perry/Schwarzenegger, it would probably make the policy status quo worse in the short term. It’s possible that Kennedy (or even Roberts) could write such an opinion, but I wouldn’t count that as a victory for same-sex marriage rights, although at least it would make future challenges to marriage discrimination easier to mount.

The Audacity of Dopes

[ 98 ] August 6, 2010 |

Obviously, Krugman versus Paul Ryan isn’t a fair fight, but this is nonetheless quite satisfying.

63-37

[ 8 ] August 5, 2010 |

Kagan confirmed. I hope she will prove to be a successful appointment.

The best government money can buy

[ 2 ] August 5, 2010 |

My favorite nugget in this particular chart is the inspiring tale of the veritable K Street Horatio Alger, Thomas Scully.

At UW, They Check on this Sort of Thing…

[ 35 ] August 5, 2010 |

Rand Paul lacks both accreditation and a bachelor’s degree?

Rand Paul, the Republican U.S. Senate nominee in Kentucky, holds a medical degree from Duke University but never received a bachelor’s degree from Baylor University, contrary to several media reports in recent months. Baylor officials confirmed this week that Paul was a student there from the fall of 1981 to the summer of 1984 but never obtained a degree. Instead, he left early when Duke accepted him in its School of Medicine. Doug Stafford, a consultant for Paul’s Senate campaign, said Wednesday that Paul has never said he holds a degree from Baylor, only that he attended Baylor in Waco, Texas. Multiple media outlets, including the Lexington Herald-Leader, made an incorrect assumption, he said. “I guess many people and some in the media have assumed Dr. Paul had a bachelor’s degree but he has never said that,” Stafford said.

You can get into Duke med school without a bachelor’s degree? Way back when, I was late sending my undergraduate transcripts to the UW graduate school. In what was surely a instance of anti-Oregon bias, I received a series of increasingly angry and threatening letters from the authorities until I submitted the relevant paperwork, indicating that I had indeed graduated from UO. Apparently they don’t do this at Duke?

…apparently matriculating students without a BA or BS was unusual, but not unknown when Paul entered Duke.

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Hawks Everywhere…

[ 5 ] August 5, 2010 |

Like I say, every country has its neocons:

In his first interview since his capture after the fall of Baghdad, Saddam Hussein’s former top deputy Tariq Aziz tells the Guardian that it would be wrong for the U.S. to pull out of Iraq now. Speaking only days after Obama confirmed that the US would be ending its combat mission in Iraq this month with the withdrawal of thousands of troops, Aziz said the country was in a worse state than before the war…

Aziz goes on to mount a defense of his old boss, though he says he tried unsuccessfully to talk Saddam out of invading Kuwait in 1991. He also remains an Iran hawk:

“Now Iran is building a weapons programme. Everybody knows it and nobody is doing anything. Why?”

In fairness to Aziz, I suspect that the Weekly Standard would have come out in strong support of the invasion of Kuwait…