25 February 2011

Defend DADT? No. Enforce DADT? Yes.

Well...at least the assholes are consistent.

When the award-winning Crustybastard Action News Team last visited the mysterious case of Log Cabin Republicans v. United States, it was just after the federal district court held the military gay ban (10 USC §654) violated the Constitution in two different ways.

Subsequently, the Obama administration — which had argued the ban was perfectly rational and constitutionally sound — appealed the district court's decision, insisting that it bore some "duty" not only to defend every suit, but also to appeal every loss. As explained elsewhere here at The 'Bastard, the Department of Justice has no legal obligation to do so. As we saw just two days ago, when the administration decided to quit defending DOMA's §3, the DOJ effectively conceded lying about the existence of this duty to defend.

In making its appeal, the government argued that the court of appeals simply must issue a stay of the district court's decision, insisting the military would suffer “immediate harm” and “irreparable injury”  if they couldn't keep discriminating against gays.  The court of appeals just assumed the government's argument and granted the stay, keeping the unconstitutional ban in full legal effect.

It is worth noting that during the few days between the district court's decision and the appellate court's grant of the stay, 10 USC §654 was not in effect and chaos did not ensue. In fact, not a single incident was reported. Good order and discipline were maintained even in the absence of a discriminatory law! Imagine that.

Meanwhile, in the smoky back rooms of Congress, Obama's personally designated repeal point man Holy Joe Lieberman was predictably screwing gays by gutting the House repeal bill — a bill which contained antidiscrimination provisions — in favor of his own halfassed conditional repeal which contains no antidiscrimination provisions, and retains 10 USC §654 as controlling law unless and until all the conditions are met. Okay, and there's also a 60-day waiting period after that. The "waiting period" was the almost-dead Senator Robert Byrd's contribution to the so-called "repeal process"; allowing the old bigot's fetid, rotting corpse one final long pointless piss on some minority's civil rights. Such a fitting coda.

Anyway, the Lieberman Amendment was added to the Defense Authorization Act at the 11th hour and most of the Democrats congratulated themselves of their grand commitment to civil rights and the principles of equality, while most Republicans insisted we now almost certainly teeter on the cusp of pure anarchy, and surely deserve a divine smiting, because y'know...life is precious and God and the Bible or some such shit.

But remember — the gay ban still remains in full legal force because (a) the court of appeals granted the government's stay, and (b) the Lieberman Amendment conditions have not yet been met.

Which brings us to today.

For the second time this week, the Obama Administration, via the Department of Justice, has taken the position that can be fairly summarized as, "well, okay — this piece of antigay legislation that has been held unconstitutional probably really is unconstitutional — we'll give you that. But we still want to keep enforcing this unconstitutional law against gays."

Which causes my head to do this:


Because as any person who has taken one semester of Constitutional Law is well-aware, a law cannot be at once unconstitutional and enforceable.

Not even as applied exclusively to gays.

24 February 2011

Well that's a new one.

Gay people are pretty used to being scapegoats for all the world's ills. But this is a new one.

Darling of the Christian Right, former Arkansas Governor Mike Huckabee is currently blaming gay couples for...

...wait for it...

deadbeat dads.

Seriously. Huckabee says he opposes marriage equality because:
"There is a quantified impact of broken families...[a] $300 billion dad deficit in America every year...that's the amount of money that we spend as taxpayers to pick up the pieces because dads are derelict in their duties."
So...what's the logic here? That there is only so much responsibility in America and when gay people are allowed to be responsible for each other, it renders fathers incapable of being responsible for their children? And failure to pay child support is a phenomenon that first materialized in 2004, upon the advent of same-sex marriage?

What about states that enshrined marriage segregation into their statutes and constitutions? Shouldn't that have depressed divorce rates? Shouldn't single parenthood have become extinct? Shouldn't child support arrears have evaporated?

Yet none of that has been the case.

Indeed, the state with the lowest divorce rate is good ol' gay-marrying Massachusetts with 1.8 divorces per 1,000 people. Massachusetts isn't unique, either. Other states with marriage equality are Connecticut (3.1), District of Columbia (2.1), Iowa (2.5), New Hampshire (3.7), and Vermont (3.3).

However, of the five states with the highest divorce rate — Arkansas (5.6), Idaho (5.0), Nevada (6.6), West Virginia (5.0) — four amended their constitutions to segregate marriage, except Wyoming (5.2) which merely banned gays from marriage by statute.

Beyond his rank bigotry, Huckabee is exhibiting a fundamental inability to comprehend basic cause-and-effect. There's a point at which, as a civilized people, we shame these dipshits into silence, rather than encouraging them to run for goddam president.

23 February 2011

Defend DOMA? No. Enforce DOMA? Yes.

You've probably read the breathless headlines about Attorney General Holder's statement regarding Section 3 of the so-called Defense of Marriage Act.

Yeah, well...it's being waaaaay oversold.

The DOJ is only saying it won't defend DOMA's Section 3* in the two new cases filed last November in the Second Circuit. The DOJ then invites any congressmembers "who wish to defend the statute [to] pursue that option" and the department also guarantees those individuals "a full and fair opportunity to participate in pending litigation."

This is a remarkable development — because I'm not at all certain that members of congress are a party with standing to defend the law. Attorney General Holder here seems to just assume this is the case without providing any support. Fact is, Congress delegated its right to defend federal laws to...Holder's department. Is Holder free to play Hot Potato like this? Not sure.

Holder buried his lede. The big news is:
The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples...is...unconstitutional.
Look, everybody! Our "constitutional scholar" president finally noticed that nouveau marriage segregation might be legally problematic. Ain't he just amazing?

So now that Obama and his DOJ have co-opted the very legal argument that kicked their asses in Massachusetts v. U.S. Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 2010), there's really no case or controversy anymore. Thus, they've apparently also decided to abandon that appeal, and any other case where DOMA Section 3 is central to their argument.

However, just because Obama has finally come to believe that law is unconstitutional** doesn't mean he won't keep enforcing it.
"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court." 
That raises two questions:

In Massachusetts v HHS (above), Federal District Court Judge Joseph L. Tauro held DOMA Section 3 was unconstitutional. The judge stayed his ruling pending the administration's appeal — an appeal that Holder hints will be abandoned, rendering Tauro's decision final. Will President Obama respect the holding of that federal district court judge?

It's a reasonable question because when the Chief Judge of the Federal Ninth Circuit Court of Appeals ordered the Obama administration — back in 2009 — to enroll the legal spouse of a court employee on the court's health insurance plan pursuant to the Federal Health Benefits Act, the administration ignored the court order, citing DOMA. So I'm very curious as to which judicial rulings President Obama feels compelled to respect.

Second question: if President Obama believes a law violates the Constitution, doesn't executing or enforcing that law violate his oath of office to protect and defend the Constitution?

* DOMA §3: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
**  16 Am Jur 2d, Sec 177 late 2d, Sec 256: "The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted."

08 February 2011

Wicked cool.

This is one section of the Stockholm subway:

Unbelievably Cool - Swedish Subway System

Other portions are equally badass. Well, maybe not equally, but I'm evil, so I'm pretty partial to this here hellmouth. Check out the rest when you have a moment.

Didn't the U.S. used to do similarly cool stuff at one time, or am I just being nostalgic for something that never was?