Wednesday, July 10, 2013

No, Indiana Did Not Just Make It a Crime for Same Sex Couples to Seek Marriage Licenses

News that Indiana has just made it a crime for same-sex couples to apply for a marriage license has started to creep into my Twitter feed. The National Journal's website, for example, claims:
Lawmakers in the Hoosier State have updated a 1997 law that makes it a felony to falsify information on marriage license. So, any couple of the same sex filling out those forms would automatically violate the law since there are only sections for one male and one female.

The law now states that it is a Level 6 felony, punishable by up to 18 months in prison and a fine of $10,000. The old law had a punishment of up to three years in prison.
This is a really misleading way to frame what's happened in Indiana.

This year, Indiana updated its entire criminal code criminal code, moving from a four-tiered system of felonies to a six-tiered system. It has been a Class D felony in Indiana since 1997 to submit false information on an application for a marriage license. Class D felonies are punishable by six months to three years in prison and fines up to ten thousand dollars. After the revised criminal code goes into effect next year, submitting a false application for a marriage license will now be a Level 6 felony, the lowest tier. Level 6 felonies are punishable by up to eighteen months in prison and fines of up to ten thousand dollars.

Indiana has not updated or amended its 1997 law forbidding criminalizing false marriage applications. This law may affect same-sex couples since Indiana's marriage application includes marked spaces for a single male applicant and a single female applicant. So, a same-sex couple would have to knowingly "misrepresent" the gender of on or the other applicants in order to submit the form. Doing so might theoretically trigger the state's license falsification law, though there are, as yet, no reports of the law being applied to same-sex couples seeking to be married in Indiana. Also, it is not clear that the law could be applied to same sex couples submitting marriage applications under the terms of the First Amendment.

I do not mean to let Indiana off the hook. The state is deeply hostile to same sex marriage. Marriage has been defined by law as a union of one man and one woman only in the state since 2004, and the state legislature is currently considering action to similarly define marriage in the state constitution. It would not surprise me to learn that the 1997 marriage application falsification act was somehow aimed at forestalling same-sex marriage, but I can't find evidence either way on that issue this morning.

The point is that there is absolutely nothing new here, except Indiana's revised criminal code, which is, by most accounts, a sensible set of reforms that, among other things, makes it easier for minor crimes to be expunged from individual records and increases protections against employment discrimination for ex-convicts.

Friday, January 25, 2013

The Supreme Court and Same-Sex Marriage: Will the Court "Split the Baby"?

The issue of same-sex marriage will arrive at the United States Supreme Court this spring in a pair high profile cases.

The first, Hollingsworth v. Perry, considers the constitutionality of California's Proposition 8, a 2008 ballot initiative which amended California's constitution to prohibit same-sex marriage, effectively over-ruling a state Supreme Court decision which held that California's constitution required allowing same-sex couple to marry along with opposite-sex couples. On Tuesday, a group of Californians who support Proposition 8 filed their brief on the merits, asking the Supreme Court to reverse the 9th Circuit Court of Appeals's decision invalidating the voter-approved measure. The case will be argued on March 23.

The second, United States v. Windsor, deals with the constitutionality of the part the federal Defense of Marriage Act, enacted in 1996, that defines marriage in federal law as "a legal union between one man and one woman as husband and wife." Among other things, the law prevents the federal government from recognizing same-sex marriages that are valid under state law. This prohibits spouses in these relationships from taking advantage of various federal programs and benefits available to opposite-sex spouses. For example, Edie Windsor, the respondent in the pending Supreme Court action, was required to pay over three hundred thousand dollars in federal taxes on her deceased wife's estate which would not have been due had the federal government recognized their marriage, which was valid in New York state, where Windsor resides. The House of Representatives, which will defend the constitutionality of the law before the Supreme Court, also filed its merits brief on Tuesday, and the case will be argued on March 26.

Already, there is some speculation that the Supreme Court will "split the baby" on the issue of same-sex marriage, invalidating the federal definition of marriage enacted by the Defense of Marriage Act (DOMA) and either refusing to decide the Proposition 8 case (perhaps by finding that the initiative's supporters don't have standing to defend the law) or reversing the Ninth Circuit's decision on some narrow grounds. A pair of decisions like this would provide substantial benefits to married same-sex couples under federal law, but leave the fundamental issue of marriage equality an open question among the states.

This is a certain appeal to predicting this kind of "compromise" outcome. There is a kind of cowardly strategic impulse that striking DOMA and dodging Proposition 8 enjoys. Though the Court would please neither strong supporters of same-sex marriage nor its strong opponents, it would also avoid a substantial backlash from either camp while letting the marriage issue continue to percolate. (More cynically, predicting a split decision is also a way for prognosticators to hedge their bets should both cases go the same direction.) Most importantly, predicting that the outcome of the marriage cases will together land in some political middle ground falls nicely into line with the heuristic of the Supreme Court as a institution divided between four liberals, four conservatives, and Anthony Kennedy.

Yet, I suspect that such a compromise outcome is unlikely.

First, a majority of the Court's justices probably favor extending the constitutional right to marry to same sex couples. The four members of the Court's liberal wing---Justices Breyer, Ginsburg, Kaga, and Sotomayor---almost certainly support marriage equality. It is likely that Justice Kennedy shares this sentiment and, I think, would be willing to join a majority for marriage equality.

Though it is tempting to think of the Court's "swing voter," Justice Anthony Kennedy, as a moderate who might like to stake out a compromise position on same-sex marriage, I don't think that's right. As Jeffrey Toobin has explained it, Kennedy is "not a moderate but an extremist—of varied enthusiasms." Recall, for example, that Kennedy took the lead among the Court's conservative justices against the Affordable Care Act. Had Chief Justice Roberts not gotten cold feet, Justice Kennedy's dissent in National Federation of Independent Business v. Sebelius would have been a majority opinion striking down President Obama's health care reform law in its entirety on Commerce Clause grounds.

More to the point here, Kennedy not only joined the majority in two of the Court's most important pro-gay rights cases, Romer v. Evans (which invalidated an amendment to Colorado's constitution that essentially prohibited the state or local governments from including homosexuals as a protected class in antidiscrimination laws) and Lawrence v. Texas (which invalidated state laws prohibiting consensual, private sexual activity, including homosexual sodomy), he wrote the majority opinion.

In each case, Kennedy wrote about gay rights broadly in terms that connected homosexuals' claims on equality and liberty to fundamental constitutional rights. Indeed, Kennedy's opinions make strong connections between the struggle for gay rights and previous civil rights movements as well as between the right to sexual liberty and the right to form relationships and marry. With apologies for their length, these passages from Romer and Lawrence make Kennedy's convictions about gay rights and his legal thinking on Equal Protection and privacy issues quite clear.

From Romer:
[Colorado's] Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision."

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws."...

Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. 

The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ."

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed. [Citations omitted.]
From Lawrence:
The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice....

In Planned Parenthood of Southeastern Pa. v. Casey, the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. [Citations omitted.]
Additionally, upending DOMA while sidestepping or preserving Proposition 8 is logically inconsistent. The provisions of the two enactments under review are substantively identical. Both restrict homosexual couples' access to the institution of marriage, and supporters of each enactment allege much the same state interest in preserving marriage as an opposite-sex institution. The defenders of Proposition 8 argue that preserving a traditional definition of marriage advances the government's interest in "regulat[ing] sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society." Likewise, DOMA's supporters argue that it furthers the legitimate government interest in encouraging "heterosexual relationships, with their unique tendency to produce unintended offspring, to be channeled into an institution designed to facilitate the raising of such offspring."

Legally, if the interest at stake in DOMA is not sufficiently "rational" or if a majority of the justices view it as a pretense to justify a policy motivated by animus toward homosexuals, it should fall. If DOMA falls, Proposition 8 shares its fatal flaw. Sure, the Court could side-step the issue for the time being by finding that the group defending Proposition 8 does not have standing to do so in federal court, but doing so would create substantial policy problems and run against strong currents in public opinion.

In terms of policy, ending DOMA and leaving marriage equality up to the states alone is nothing but trouble. It would put the Supreme Court in the position of positively leaving same-sex couples living in different states with different access to the "fundamental...freedom of choice to marry," and would start an avalanche of federal claims related to same-sex couples who legally marry in one state and ultimately move to another state which does not recognize same-sex unions. Ending DOMA would ultimately be the beginning of the final countdown to national marriage equality whatever the resolution of Hollingsworth might be in this term of the Court.

In terms of public opinion, most polls indicate that a majority of Americans now favor same-sex marriage outright. More importantly, support for same-sex marriage is rapidly growing. For example, in 2004, an NBC News poll found that 61% of Americans opposed "allowing gay and lesbian couples to enter into same-sex marriages," with 51% "strongly" opposing same-sex marriages. Only 30% of Americans supported marriage equality. In late 2012, another NBC News poll (asking the same question), found that 51% of Americans now support allowing same-sex couples to marry with only 40% expressing opposition. In the course of eight years, nearly a fifth of the American people swung from opposing same-sex marriage to supporting it, and it is reasonable to suspect that support for marriage equality will continue to grow in the future.

By acting strongly in favor of same-sex marriage---that is, by ending DOMA and invalidating Proposition 8 and other similar state laws that restrict marriage to opposite-sex couples a majority of the Court's members would avoid creating a hash out of our de facto national marriage policy, align itself with a solid and growing majority of Americans who support marriage equality, and get the policy outcome they want. Of course, the Court risks as backlash from a dedicated minority who oppose same-sex marriage, but given the current configuration of power in Congress and the White House, there is effectively no way for this minority to effectively retaliate or undermine the Court. A majority of the Court's justices are therefore substantially unconstrained, either by public opinion or by coordinate branches of government, from pursuing an ambitious agenda of marriage equality if they so choose.

Wednesday, November 7, 2012

So, How's the Tea Party Taking the News?

A few days back, Andrew Sullivan wrote that Mitt Romney losing the election would force the Tea Party and the rest of the conservative base to reconsider its positions and rhetoric:
My own view is that the only way to rehinge an unhinged party is for it to lose badly. And because Romney put Ryan on the ticket, and endorsed the entire Tea Party shebang, it will be hard for the wingnuts to blame defeat on running a moderate.
In response, I  had written that channeling the spirits of the Tea Party faithful is not one of Sullivan's many gifts.
Sullivan is insightful about many things, but he utterly misunderstands the Tea Party and the Republican Party's primary electorate. Should Mitt Romney lose the election, as it seems reasonably likely that he will, the Tea Party movement and the larger set of Republican partisans who populate its primary electorate will, I suspect, draw precisely the opposite lesson from the election.
So, Romney has lost.

How is the Tea party taking the news?

It's still early, but  it looks like I will turn out (sadly) to be right about this one. This morning, the website Tea Party Network News, ran a statement headlined "Tea Party Vows 'No Retreat': Promise to search out candidates with clear conservative records; no more Dole-McCain-Romney nominees." It opens:
Leaders of the Tea Party News Network (TPNN) and TheTeaParty.net offered an unflinching assessment of Election Day results. Todd Cefaratti, editor of the Tea Party News Network said, “We’re disappointed in Governor Romney’s loss. But this goes to the heart of what we have been saying all along. Bob Dole didn’t win. John McCain didn’t win. And now Mitt Romney hasn’t won. The lesson the GOP and Americans need to learn is that weak-kneed Republicans do not get elected. Conservatives do.” 
“The Tea Party has not yet begun to fight. It’s time for a wholesale reassessment of the D.C. establishment politicians and party grandees who have no commitment or courage to reduce the size of government. We now have another four years ahead of us with Barack Obama leading the charge against liberty,” TPNN News Director Scottie Hughes said. “There were some bright spots tonight from Ted Cruz to Jeff Flake, to a decisive win in the U.S. House where Tea Partiers have a mandate to stand against Obama’s big government second-term agenda. ”
“I eagerly await the day the GOP establishment figures out that the ‘safe’ candidates are not getting the job done,” stated Hughes. “The GOP needs to adhere to stricter ideological purity and put forth candidates that represent a significant difference in viewpoint from the Democrats that are creating devastating policies for Americans. The Republican Party has been shoving ‘their’ candidate down the throats of conservatives for years, and it’s not working. It’s time for them to wake up.”
At Tea Party Nation, Judson Phillips writes:
There are some lessons to be learned from this disaster.  The first lesson is, no more moderate Republican candidates.  Mitt Romney now joins the long list of moderate Republicans who line up right next to General George Custer.   Romney lost.  McCain lost, George W. Bush barely won and set the stage for Obama.   Bob Dole lost.  The only reason George H.W. Bush won a single term was because he was Ronald Reagan’s Vice President.  When he ran on his own as a moderate, he gave us Bill Clinton.

We conservatives have to say this time; we will not support a moderate again.  Our desire to remove Barack Obama and the Party of Treason was so strong that we jumped on board the Romney train.  The Republican establishment correctly assumed that if it could get Romney nominated, we would have no choice but to fall in line.

It happened this time.  It will not happen again.
Daniel Horowitz writes on the front page of RedState.com:
We ran with Dole in 1996, and we lost; we ran with McCain in 2008, and we lost; we ran with Romney, and we lost.  Romney took the issue of Obamacare off the table and barely attacked Obama directly for much of anything.  There was no potent conservative philosophy that was offered to provide voters with a sharp distinction between the parties.  The Republican convention was a pathetic Oprah show and the entire campaign was basically an advocacy of Obama’s policies, albeit with less enthusiasm.  And let’s not blame the loss on Paul Ryan and Medicare reform; he outperformed Bush and McCain with seniors.
This line of thinking spills over into the Conservative semi-establishment. Writing at National Review Online, Grover Norquist faults Romney's lack of commitment to tax cuts and entitlement reform:
The Republican House was reelected after not just touching but fondling the “third rail of American politics.” It is clear that if you are specific about your reforms they cannot as easily be misrepresented to voters. The Republicans in the House all voted for Ryan. They lashed themselves to the mast and thrived. Romney hinted he was sort of in that general vicinity.
These examples are a nonrandom sample of the some of the Tea Party's first responses to the election. I don't know how representative they of of the Tea Party as a whole or the larger core of the conservative movement more generally. Still, I wouldn't be surprised if this line of thinking becomes the movement's conventional wisdom and motivates its leaders' strategic decisions between now and 2016.

Friday, November 2, 2012

Andrew Sullivan Utterly Misunderstands the Tea Party: The Conservative Response to a Romney Loss

In a blog post critiquing David Frum's endorsement of Mitt Romney, Andrew Sullivan drops this:
My own view is that the only way to rehinge an unhinged party is for it to lose badly. And because Romney put Ryan on the ticket, and endorsed the entire Tea Party shebang, it will be hard for the wingnuts to blame defeat on running a moderate.
Sullivan is insightful about many things, but he utterly misunderstands the Tea Party and the Republican Party's primary electorate. Should Mitt Romney lose the election, as it seems reasonably likely that he will, the Tea Party movement and the larger set of Republican partisans who populate its primary electorate will, I suspect, draw precisely the opposite lesson from the election.

The conservative movement, including the Tea Party, will conclude that Romney's loss was a result of his failure to forcefully articulate a clear and consistent conservative vision. Had Romney been a true Reagan conservative, it will reason, he could have easily driven Barack Obama from office in the midst of a slow and uncertain economic recovery in the same way that the Great Reagan himself defeated Jimmy Carter in 1980.

Instead, they will reason that the Republican Party lost a winnable election because the country club establishment pushed the great moderate from Massachusetts on them. As a result, they will say that RomneyCare took ObamaCare off the table as an issue, that Romney put too much distance between himself and Paul Ryan's original budget roadmap (and corrupted Paul Ryan in the process), that he failed hit the president on Benghazi, and that he was soft on abortion. In short, the movement will blame Romney's defeat on every way he diverged from its ideal rather than any way in which he embraced it.

I expect neither the leadership of the conservative movement nor its adherents in the mass public to find any reason to moderate their political ambitions or rhetoric as a result of a Romney defeat. Instead, I expect the most committed parts of the conservative movement, including the Tea Party, to double down on their prior beliefs. Among other things, if Mitt Romney loses next Tuesday, I expect that the next presidential nominee of the Republican Party will be much more like Rick Santorum than Jeb Bush. Likewise, Mike Lees and Richard Mourdocks will continue to seriously and successfully Bob Bennetts and Dick Lugers in conventions and primaries for seats in Congress and state legislatures across the country. And, the general trend of asymmetrical partisan polarization will continue.

EmpowerU and Texas A&M University System Analytics: One (but Only One) Step in the Righ Direction

The Texas Tribune reports that the Texas A&M University System is set to officially launch a new public accountability website on Monday called EmpowerU. The heart of the website is another website reporting "Analytics" for each system campus. The analytics website reports a variety of aggregate data on enrollment, student degree progress, completion rates, and finances for the various Texas A&M System institutions.

Having a centralized web portal for these data is a great improvement. While data on the system's workload and performance have been nominally public for some time, they have been hard to find online and available only from disparate entities within the system or from the state's Higher Education Coordinating Board. Putting the information in one spot is a huge boost for transparency and accountability, and the system should be commended.

Having said all of that, the analytics website looks and acts incredibly clunky. It doesn't so much report data as offer some pre-packed statistics reported in poorly formatted charts and clunky graphics. Here's an example. The following is a screen clipping from the reported generated for requesting data on the "Most Recent Fall" from the "Enrollment" tab.


The data breakouts are arbitrary (Why is ethnicity reported in a bar chart in the top left corner using one color scheme while gender is reported in a pie chart in the bottom right corner with another? Why does the ethnicity bar chart need a color scheme at all?). The space is poorly formatted (You must scroll down in the "Ethnicity" box to see internalization student enrollment, for example.) and much of it is wasted (e.g. the huge white spaces around the Texas map and space used by the redundant Texas A&M System logo in the top left corner of the data field). The bar charts in the lower half of the screen showing enrollment by campus puts enrollment on the main campus at College Station with enrollment at other system campuses on different scales. The campus labels are unhelpful (nine begin with the acronym "TAMU." They could simple be labeled "College Station, Prairie View, Health Science Center, International, Commerce, etc.) There is a lot of useless chart junk, like the boxes around the various figures. Options for manipulating the graphs are confusing. The whole thing is confusing, difficult to use, and, frankly, ugly.

These are more than just aesthetic objections. The presentation of the data make them hard to understand and contextualize. An citizen, parent, or legislator who wanted to compare the size and diversity of the various system campuses might easily be misled or distracted by this display of information.

Additionally, the underlying data themselves are not available to be downloaded. This makes it difficult for others' to independently assess the system's performance, which is the reason for making the data public in the first place. In this respect, the analytics website compares unfavorably with other government websites used to disseminate public information.

For example, the federal Office of Management and Budget's website includes a wealth of reports and analysis along with an array of historical data available to be downloaded as MS Excel spreadsheets, which can be read by a variety of free and open source software packages in addition to many commercial programs. Those interested in the federal budget need not take the OMB's word about anything. The raw data used in their reports are available for anyone else to analyze on their own. The TAMU System's analytics data are free and online, but the data themselves should be available in a convenient, widely used electronic format, also.

EmpowerU is a step in the right direction, but a serious effort to promote transparency and accountability should make a more significant effort to present data in useful and understandable ways and also make the relevant data easily available without the filter of the system's "analytics."