In the annals of Supreme Court history, there are perhaps only a handful of cases that go down in history as more egregious than what happened in Suzette Kelo v. City of New London.

In that case, the Supreme Court approved an eminent domain taking by the City of New London, Connecticut that involved taking the land of the principal plaintiff, and many others, and using it for a commercial development that would be used by Pfizer Corp. for a new corporate business center. It was a decision that was roundly and deservedly condemned at the time and which led to some efforts at eminent domain reform at the state level, many of which were successful.

But, in the end, Suzette Kelo still lost her property, and now, to add insult to injury, Pfizer has abandoned the project that was the subject of the eminent domain proceeding:

The private homes New London, Conn., took through eminent domain from Suzette Kelo and others, are torn down now, but Pfizer has just announced that it closing up shop at the research facility that led to the condemnation.

Leading drugmakers Pfizer and Wyeth have merged, and as a result, are trimming some jobs. That includes axing the 1,400 jobs at their sparkling new research & development facility in New London, and moving some across the river to Groton.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost, as five justices said this redvelopment met the constitutional hurdle of “public use.”

The private homes that New London, Conn., took away from Suzette Kelo and her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of eminent domain.

But now Pfizer, the drug company whose neighboring research facility had been the original cause of the homes’ seizure, has just announced that it is closing up shop in New London.

Scott Bullock, Kelo’s co-counsel in the case, told me: “This shows the folly of these redvelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

One wonders if Suzette Kelo is paraphrasing former Labor Secretary Ray Donovan and wondering, where do I go to get my house back ?

And you know the worst part ? Not only did Suzette Kelo lose her house, but we’re stuck with an incredibly bad precedent that will likely take decade to reverse.

The jokes will be legion, but the policy is sound. And this is a move that Libertarians, Republicans and Democrats can all applaud.

From The AP:The jokes will be legion, but the policy is sound. And this is a move that libertarians, republicans and democrats can all applaud.

From The AP:

WASHINGTON (AP) — The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

Fourteen states allow some use of marijuana for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington.

What does this mean practically?

Well, no more federal raids of medical marijuana shops, fewer non-violent drug offenders in jail and a LOT of very happy stoners. Oh, and we are able to focus a lot of our efforts on important things (terrorism, gangs, etc.), which should save more lives and a lot of money.

Again, this should be applauded from all corners…but I’m waiting to see what the states’ rights crowd has to say about it.

So, it looks like the artist behind the iconic poster of Barack Obama actually did use an A.P. image as a template to create it. Still, there’s a lot to discuss about copyright infringement, Fair Use, etc.

However, first the details from the NY Times:

The A.P. claimed in January that Mr. Fairey owed them credit and compensation for using the photograph. But in February Mr. Fairey sued The A.P., seeking a declaratory judgment that the poster did not infringe on the agency’s copyrights, and that he was entitled to the image under the “fair use” exception of the copyright law. The A.P. countersued in March, saying that Mr. Fairey misappropriated its rights.

Mr. Fairey told The A.P. — and his own lawyers — that he used a shot from an event about Darfur at the National Press Club in Washington event where Mr. Obama was seated next to George Clooney. Instead, the photograph he used was a solo image of Mr. Obama’s head, tilted in intense concentration. Mr. Fairey admitted that in the subsequent months following the suit and countersuit, Mr. Fairey destroyed evidence and created false documents to cover up the real source.

“In an attempt to conceal my mistake, I submitted false images and deleted other images,” Mr. Fairey said in a statement. “I sincerely apologize for my lapse in judgment, and I take full responsibility for my actions, which were mine alone.”

Yes, Fairey lying about this was wrong, stupid, etc. Shame on him for that. But, as the title suggests, that doesn’t make his use of the photo copyright infringement.

Let’s look at The A.P.’s actual claim. They’re saying that you can’t create ANYTHING that uses their content as mere reference material without paying them. They’ve done similar things with bloggers in the past, and their policies are, in a word, nuts. Because they literally expect people to pay to use even a tiny snippet of their writing or posting a picture. Actually, I’m probably in violation of their terms of use right now for using the photo at the top, but that’s where Fair Use comes in…

The government describes it as such…

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Now, there are 4 basic ways that Fair Use can be applied to any given case, and my guess is that Fairey is using the following as his way out, “The effect of the use upon the potential market for, or value of, the copyrighted work.” What that means is that the use of the copyrighted material doesn’t negatively impact the value of the image.

And here’s where the true irony of this case comes in…nobody even knew about that Obama photo before Fairey made it famous. So he created the market for The A.P., not the other way around.

But wait…there’s more!

Apparently, there’s confusion as to whether The A.P. even owns the photograph!

Again, from NY Times…

Complicating the legal battle, in July, the freelance photographer, Mannie Garcia, filed court papers in July saying that he was the one who was owned the copyright of the 2006 photo; Mr. Garcia’s assignment was to photograph Mr. Clooney, and he contended that he never assigned his copyright rights to The A.P.

So let me get this straight…The A.P. told somebody to photograph Clooney but they’re claiming that ANY photograph taken during that time belongs to them?

Hmmm….pot meet kettle. Kettle, pot. I’m sure you two have a lot to discuss. Maybe you can talk a little about this guy while you’re at it.

If you’re not familiar with the word rescission, this is the practice of canceling policies because people didn’t reveal a preexisting condition. And it’s one of the key reasons why the health insurance companies can claim that there’s $100 billion in health care fraud every year.

Here’s one example of what they consider fraud…

“They said I never mentioned I had a back problem,” said [Sally] Marrari, 52, whose coverage with Blue Cross was abruptly canceled in 2006 after a thyroid disorder, fluid in the heart and lupus were diagnosed. That left the Los Angeles woman with $25,000 in medical bills and the stigma of the company’s claim that she had committed fraud by not listing on a health questionnaire “preexisting conditions” Marrari said she did not know she had.

By the time she filed a lawsuit in 2008, she also got a diagnosis of pancreatic cancer and her debts had swelled beyond $200,000. She was able to see a specialist by trading office visits for work on the doctor’s 1969 Porsche at the garage she owns with her husband.

That’s rich, eh? Can’t afford medical bills so she has to trade services for it…to work on the doctor’s vintage car. If that’s not a symbol for everything that’s wrong with how we buy and pay for health care in this country, I don’t know what is.

Of course, finding cases of “fraud” is a lucrative business and the insurance companies are making sure they identify all they can. But sometimes they get caught…

In the past 18 months, California’s five largest insurers paid almost $19 million in fines for marooning policyholders who had fallen ill. That includes a $1 million fine against Health Net, which admitted offering bonuses to employees for finding reasons to cancel policies, according to company documents released in court.

To me, rescission is a patently immoral practice that amounts to private rationing so insurance companies can make more money. Not just make money. Not just stay in business. They are offering BONUSES to people who find fraud.

Folks, the “death panels” are here and while the insurance companies consider rescission a way to identify fraud in their system, I think this entire practice of finding ways to cut people from their insurance (especially in their most vulnerable hour) constitutes a systematic fraud on the public trust and it MUST end.

And that’s why, if we achieve nothing else in this health care fight, we should at least make it illegal for insurance companies to cut people from their policies because of preexisting conditions. That’s THE most important reform measure in this debate, and I hope those of you who continue to push the public option realize that.

So Canada has basically decriminalized marijuana possession and Mexico has added cocaine, meth, heroin and LSD to the mix.

Wonder what’s going to happen in the US in the next decade…especially given the current reality in California where shops are selling pot out in the open?

The Daily Beast has more…

In an effort to garner control in the battle against drug traffickers, Mexico has passed a new law that decriminalizes small amounts of drugs by setting maximum “personal use” amounts on marijuana, cocaine, heroin, LSD, and methamphetamine. A person will no longer be arrested if found with 5 grams of marijuana (or 4 joints), a half-gram for cocaine (or 4 lines), 50 milligrams of heroin, 40 milligrams of methamphetamine, or 0.015 milligrams of LSD.

But the Mexican government is quick to point out that the difference between decriminalization and…

“This is not legalization,” assured Bernardo Espino del Castillo of the attorney general’s office. “This is regulating the issue and giving citizens greater legal certainty.” Under the new law, anyone caught with drug quantities below the limit will be encouraged to seek treatment, until the third time a person is caught when treatment becomes mandatory.

You know, I think that’s actually a pretty good policy, with the exception of marijuana being a drug that needs mandatory treatment. I mean, if somebody is walking around drunk a few times, will cops stop them? Of course not. Marijuana is far less harmful than alcohol, but the stigma exists and so it goes.

Also, how many LSD addicts are out there? 5? I mean…come on. Maybe that provision was made for the rich kids in Mexico City and the Turistas in Cancun. Hrmmm…

In any event, I think this a good, common sense step forward to make sure that non-violent drug offenders aren’t rammed-rodded through the system and have to serve unnecessary jail time.

…and the libertarians and liberals did cheer…

Yes, I realize these laws are meant to prevent repeat offenses, but either up the penalties for those offenses or just leave them be. Once somebody gets out of prison, that should be it. End of story. If they commit another crime it would be tragic, but we have gone WAY too far with these laws and who can honestly defend forcing people to live under a bridge?

Also, let’s not forget that there are plenty of really stupid sex offender laws out there too. People get locked up for doing some fairly innocent things.

The Economist takes a closer look…

In all, 674,000 Americans are on sex-offender registries—more than the population of Vermont, North Dakota or Wyoming. The number keeps growing partly because in several states registration is for life and partly because registries are not confined to the sort of murderer who ensnared Megan Kanka. According to Human Rights Watch, at least five states require registration for people who visit prostitutes, 29 require it for consensual sex between young teenagers and 32 require it for indecent exposure. Some prosecutors are now stretching the definition of “distributing child pornography” to include teens who text half-naked photos of themselves to their friends.

How dangerous are the people on the registries? A state review of one sample in Georgia found that two-thirds of them posed little risk. For example, Janet Allison was found guilty of being “party to the crime of child molestation” because she let her 15-year-old daughter have sex with a boyfriend. The young couple later married. But Ms Allison will spend the rest of her life publicly branded as a sex offender.

The problem is…these laws will only get harsher because what politician in their right mind will try and soften them? This guy in Florida who’s suing the state is certainly a brave guy, but let’s remember that this has been going on for 2 YEARS. That’s how long it took for this to become enough of an eyesore for somebody to make a case that it’s hurting the economy.

What do you think?

Many of us are already regard the Bush administration as a bad, distant memory, but today we’re reminded of just how morally bankrupt they were.

From Wash Post:

The dismissal of U.S. Attorney David C. Iglesias of New Mexico in December 2006 followed extensive communication among lawyers and political aides in the White House who hashed over complaints about his work on public corruption cases against Democrats, according to newly released e-mails and transcripts of closed-door House testimony by former Bush counsel Harriet Miers and political chief Karl Rove.

A campaign to oust Iglesias intensified after state GOP officials and Republican members of the congressional delegation apparently concluded that he was not pursuing the cases against Democrats in a way that could help then-Rep. Heather A. Wilson (R) in a tight reelection race in New Mexico, according to interviews and Bush White House e-mails released Tuesday by congressional investigators. The documents place the genesis of Iglesias’s dismissal earlier than previously known. [...]

The House panel focused most of its attention on Iglesias, a rising star in New Mexico who came to displease his political patrons. Miers told investigators that Rove called her in September 2006, “agitated” about the slow pace of public corruption cases against Democrats and weak efforts to pursue voter-fraud cases in the state. In the call, Miers said, Rove described Iglesias as a “serious problem” and said he wanted “something done” about it. Miers testified that she called then-Deputy Attorney General Paul J. McNulty to pass along the concerns.

Yes, Rove didn’t say “I want Iglesias fired!”, but this is much more than nudge nudge wink wink. Miers admits that Rove said he wanted something done. That was September 2006. Two months later in November, Iglesias’ name was placed on a list for dismissal. In December he was fired.

Rove’s response? As if you even have to read it….

In a statement Tuesday, Rove asserted that he “never sought to influence the conduct of any prosecution” and did not decide which prosecutors were fired. He also accused Democrats of making “false accusations and partisan innuendoes.”

The only problem here with Rove’s hacky answers is the fact that Harriet Miers is now the one supplying the accusations and innuendoes. To me this is game, set, match.

Moving on…

After the release of a study that showed somebody is 23 times more likely to get into an accident, Dems in Congress are working on legislation that would make it illegal across the country.

From the AP:

WASHINGTON — States would be required to ban driving while texting or face the loss of highway funds under legislation being pushed by a group of Democratic senators.

Aimed at reducing driver distraction and highway deaths and injuries, the proposal follows a series of studies showing the dangers of drivers taking their eyes off the road to operate the handheld electronic devices.

Fourteen states and the District of Columbia have passed laws making texting while driving illegal.

“The federal government ought to pass a law banning this dangerous and growing practice to protect the millions of Americans on our nation’s roads. It is a matter of public safety,” said Sen. Charles Schumer, D-N.Y., who was to unveil the legislation Wednesday along with Democrats Robert Menendez of New Jersey, Mary Landrieu of Louisiana and Kay Hagan of North Carolina.

Here’s more about that study…

The Virginia Tech Transportation Institute, which compiled the research and plans to release its findings on Tuesday, also measured the time drivers took their eyes from the road to send or receive texts.

In the moments before a crash or near crash, drivers typically spent nearly five seconds looking at their devices — enough time at typical highway speeds to cover more than the length of a football field.

Even though trucks take longer to stop and are less maneuverable than cars, the findings generally applied to all drivers, who tend to exhibit the same behaviors as the more than 100 truckers studied, the researchers said. Truckers, they said, do not appear to text more or less than typical car drivers, but they said the study did not compare use patterns that way.

Listen, nanny stateism or not, this is legislation that needs to be passed. Those of us who’ve texted while driving know how ridiculously dangerous it is and we’ve all thought, “Man, if something had jumped out in front of me…”

The upside of a federal mandate? I smell a business plan…

The A.P. continues to come up with one dumb idea after another.

I have more on this craziness over at True/Slant.

As we continue to have conversations about reforming the way we cover our health care expenses, especially huge, end of life costs, the following story about euthanasia seems very topical.

More at True/Slant.

This is an incredibly significant step because it paves the way for an actual revolution.

From Times Online:

Iran’s biggest group of clerics has declared President Mahmoud Ahmadinejad’s re-election to be illegitimate and condemned the subsequent crackdown.

The statement by the Association of Researchers and Teachers of Qom is an act of defiance against the Supreme Leader, Ayatollah Ali Khamenei, who has made clear he will tolerate no further challenges to Mr Ahmadinejad’s “victory” over Mir Hossein Mousavi.

“It’s a clerical mutiny,” said one Iranian analyst. “This is the first time ever you have all these big clerics openly challenging the leader’s decision.” Another, in Tehran, said: “We are seeing the birth of a new political front.”

This has a few practical effects.

1. It puts the Supreme Leader in a nearly indefensible positions and calls into question his authority.
2. These clerics can now claim the moral high ground and possibly unseat the Supreme Leader
3. It’s unlikely that Mousavi will be arrested at this point, even though Khamenei has called for it.

Also, let’s not forget that even though the protests were quashed last week, folks will be coming out in about 20 days to mourn the deaths of the protesters who died during the first round. And this could lead to more deaths, which will lead to more protests, etc. And that’s how the revolution in 1979 happened, so there’s a possibility it could happen again.

More as it develops…

Nearly 9 months after the election, there appears to be some light at the end of the tunnel for Minnesota.

From the AP:

ST. PAUL, Minn. (AP) – The Minnesota Supreme Court on Tuesday ordered that Democrat Al Franken be certified as the winner of the state’s long-running Senate race.

The high court rejected a legal challenge from Republican Norm Coleman, whose options for regaining the Senate seat are dwindling.

Justices said Franken is entitled to the election certificate he needs to assume office. With Franken and the usual backing of two independents, Democrats will have a big enough majority to overcome Republican filibusters.

However…

Coleman hasn’t ruled out seeking federal court intervention.

Ugh.

Norm…seriously…it’s time to pack it up. It was close, but you lost and every recount has shown that. Not only that, I think nearly every single court decision has gone against you. Minnesota needs a Senator and it’s pretty clear that you won’t be it. Move on already.

More as it develops…

A bombshell story broke today about the Obama administration drafting an executive order that could be used to hold terrorism suspects indefinitely.

First, here’s the story…

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

After months of internal debate over how to close the military facility in Cuba, White House officials are increasingly worried that reaching quick agreement with Congress on a new detention system may be impossible. Several officials said there is concern in the White House that the administration may not be able to close the prison by the president’s January deadline.

But the administration denied the report and the Washington Post has since revised it…

An administration official told AFP that no such draft order existed, though internal deliberations were taking place on how to deal with those inmates who could not be released or tried in civilian courts.

The source said that a task force established by the president was not due to present its recommendations until July, and that the administration would then work with Congress to find a solution to the conundrum.

The official was reacting to a report by The Washington Post that said the Obama administration “has drafted an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely.”

The newspaper later revised its report to say the administration “is drafting” the executive order, among other changes.

So, seriously, who’s lying?

Listen, I have no doubt that people have at least discussed the idea of keeping indefinite detention on the table because that’s just debate. But that’s a lot different than drafting an executive order. Did Wash Post jump the gun on this one or is the Obama administration actually considering indefinite detention as an option?

Also, after the last 8 years, how is indefinite detention a sticky subject in Congress? I thought it had been long since established that Americans didn’t approve of this practice. Did I miss something in the past 6 months?

Let’s say, for argument’s sake, that Roeder actually did kill Tiller. Does that guy look like he has even a shred of remorse? It sounds like he’s getting directions to a restaurant, not being informed of when his next court date is. Chilling stuff.

And, by the way, the folks at Operation Rescue supplied Roeder with information about Tiller’s court dates…

Roeder apparently kept track of the state prosecution against Tiller through a senior member of Operation Rescue, the anti-abortion organization.

At the time of Roeder’s arrest Sunday afternoon along Interstate 35 in Johnson County, a television station captured the vehicle on video. There on the dashboard was a note that read “Cheryl” and “Op Rescue” with a phone number.

Cheryl Sullenger, senior policy adviser for Operation Rescue out of Wichita, said Tuesday that she has spoken to Roeder in the past, but she said he would initiate the contact. She said she hasn’t had any recent contact with him.

Sullenger served about two years in prison after pleading guilty to conspiring to bomb an abortion clinic in California in 1988. She has since renounced violent action.

She said Roeder’s interest was in court hearings involving Tiller.

“He would call and say, ‘When does court start? When’s the next hearing?’ ” Sullenger said. “I was polite enough to give him the information. I had no reason not to. Who knew? Who knew, you know what I mean?”

Yes. Who knew?

More as it develops…

Number six is now official.

From MSNBC:

CONCORD, New Hampshire – New Hampshire became the sixth state to legalize gay marriage after the Senate and House passed key language on religious rights and Gov. John Lynch — who personally opposes gay marriage — signed the legislation Wednesday afternoon.

After rallies outside the Statehouse by both sides in the morning, the last of three bills in the package went to the Senate, which approved it 14-10 Wednesday afternoon.

Cheers from the gallery greeted the key vote in the House, which passed it 198-176. Surrounded by gay marriage supporters, Lynch signed the bill about an hour later.

The new law will take effect January 1, 2010, but already states are seeing an economic boost as a result…

The phones started ringing at the Timberholm Inn in Stowe, Vt., in April, as soon as lawmakers voted to override a gubernatorial veto and allow same-sex marriage in the state. “It doesn’t go into effect till Sept. 1, but people are thinking ahead,” says the inn’s co-owner, Susan Barnes. “We’ve got two same-sex weddings booked for October.” Those bookings are good news for Barnes, who says the gay-friendly inn takes in a “couple of thousand” dollars with every wedding it hosts. And they are part of the reason some same-sex-wedding advocates are now pointing out a new legalization angle: the economic payoff.

In the five years since legalizing same-sex marriage, Massachusetts has gained $111 million in spending from gay weddings, according to a new study published by UCLA’s Williams Institute, which studies sexual-orientation law and public policy. “That’s money buying flowers, hotels, caterers, hiring a band—all the things that go into a wedding,” explains M. V. Lee Badgett, a coauthor of the study.

Typically, same-sex couples spent about $7,400 per wedding, says Badgett, an economist who is also director of UMass Amherst’s Center for Public Policy & Administration, and one in 10 couples spent more than $20,000. And then there were the wedding guests: “We estimated that each same-sex couple was associated with $1,600 in hotel-occupancy tax revenue,” she says.

Next up: New York and New Jersey.

More as it develops…

“I think that freedom means freedom for everyone. As many of you know, one of my daughters is gay, and it is something we have lived with for a long time in our family. I think people ought to be free to enter into any kind of union they wish. Any kind of arrangement they wish.”
- Dick Cheney on the hottest topic of the day

Now, he did go on to say that this should be decided at the state level and that’s how it has always been decided, which is nonsense if you know the legal history of marriage restriction, in particular Loving v. Virginia.

However, it is interesting to note that on this issue, one of the leading conservative voices is seemingly more progressive than the most liberal President since FDR.

Here’s more of what he said…

The question now…when will Obama come around?

Wish fewer people smoked? Maybe it’s time for visual warnings on packages.

Cigarette packages should show graphic images of yellow teeth, blackened gums, protruding neck tumors and bleeding brains to alert smokers to their disease risks, the World Health Organization said on Friday.

WHO says 20 nations already use some form of visual warning and evidence suggests those graphic images deter smokers from smoking.

I don’t see why we need to stop there. I’m thinking full-sugared Cokes can come with pictures of legs amputated because of diabetes. Cars can have crash victims painted on their doors. Budweiser can come with photos of diseased livers or, you know, photos of a bunch of drunk people (who, let’s face it, are only attractive to other drunk people).

Absurdity aside, I do understand the public health hazard of cigarettes. But I’m am continuously amazed and amused by the lengths governments will go to try to stop people from buying and using a legal product. If smoking is so bad, why not criminalize it? Why try overbearing market manipulations when you can just outlaw the market altogether and claim a public health victory?

The answer, of course, is taxes. As long as governments use cigarettes as a source of revenue, outlawing the stuff would be a big financial blow. So you end up with a bizarre little balancing act where government’s will do all they can to dissuade people from using the product while simultaneously profiting from the use of that product. Frankly, if we’re willing to be so ambiguous in our public health values, we might as well legalize marijuana and begin enjoying the tax windfall.

This was a bit of a surprise when I heard about it, but apparently Ted Olson has joined forces with the Equal Rights Foundation and they’ve just sent out a press release about yesterday’s decision.

Here are some key excerpts (.pdf) …

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.” [...]

Today’s lawsuit argues that the California’s Constitution — as amended by Proposition 8 — violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply.

Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

• Violates the Due Process Clause by impinging on fundamental liberties.
• Violates the Equal Protection Clause of the Fourteenth Amendment.
• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
• Discriminates on the basis of gender.
• Discriminates on the basis of sexual orientation.

That’s a lot stronger case than I thought it would be, and maybe they’re right to challenge this one. But the key difference between Loving v. Virginia and this case is that racial identity is pretty much fixed, while it can be argued that sexual identity is not necessarily. Sure, we make sure folks can’t discriminate based on sexual orientation, but that doesn’t infer marital rights to those folks. Of course, then it gets into the idea that bisexuals should be allowed to marry whoever they want, and I’m obviously fine with that too. But there’s a difference and it will be brought up.

Also, common sense tells me that if the liberal CA Supreme Court voted against overturning Prop 8 by 6 to 1, does anybody think the US Supreme Court will overturn that? Seems highly unlikely, so they could be handing their opponents a very easy win. (Note: This case is different than the one the CA Supreme Court just decided. My apologies for the confusion, but it also means their case is MUCH stronger now.)

Regardless, it’ll be an interesting case and this could be a watershed moment for gay marriage…one way or another.

(h/t: Volokh)

Anybody who reads this blog knows where I fall on the gay marriage issue, but the Supreme Court of California wasn’t reallly deciding the validity of gay marriage itself, so the ruling was actually dead on in my opinion.

This article from Bloomberg points out why…

The court legalized gay marriage a year ago before California voters overruled it in November. Fifty-two percent of them approved the ban, amending the state constitution to recognize only marriages between a man and a woman. The court ruled 6 to 1 today in favor of upholding Proposition 8, saying it was ruling only on the ability of voters to pass a ballot measure rather than whether gay marriage should be legal.

“The principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state constitution itself through the initiative process,” the court wrote, “not to determine whether the provision at issue is wise or sound.”

Yes, it’s the law and it’s specific. And if they ruled against that provision, it would harm the citizens’ rights to amend the Constitution. That’s not a precedent the courts want to set just to prove a point.

But here’s the most important part of this entire argument…all the marriages that happened before the ban are legal!!!

The court ruled unanimously that the 18,000 same-sex marriages performed before the ban remain valid. The November ban sparked protests across California and led activists to create Web sites that identified individuals who donated money to support the measure and boycott donors’ business. The ballot measure overrode the court’s May 15, 2008, ruling that laws barring same-sex marriages were unconstitutional.

So to all of you gay marriage advocates, I know this seems like a loss today but it’s not.

Actually, this is a VERY big win as it signals continuous positive movement. Because you know there will be another ballot initiative to overturn Prop 8 at some point and it’ll pass and California will join the growing number of states where marriage is equal for all. But you have to get out there and fight for it if you want it to happen.

More as it develops…

No doubt you’ll be hearing A LOT about this decision…

Although Sotomayor has not had a case dealing directly with abortion rights, she wrote the opinion in Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), a challenge to the “Mexico City Policy,” which prohibited foreign organizations receiving U.S. funds from performing or supporting abortions. An abortion rights group (along with its attorneys) brought claimed that the policy violated its First Amendment, due process, and equal protection rights.

Relying on the Second Circuit’s earlier decision in Planned Parenthood Federation of America, Inc. v. Agency for International Development, which dealt with a virtually identical claim, Sotomayor’s opinion rejected the group’s First Amendment claim on the merits. Turning to the plaintiffs’ due process claim, Sotomayor held that they lacked standing because they alleged only a harm to foreign organizations, rather than themselves.

Sotomayor held that the plaintiffs did have standing with regard to their equal protection claim, but she ultimately held that the claim failed under rational basis review because the government “is free to favor the anti-abortion position over the pro-choice position” with public funds.

This could actually diffuse the only real hot button issue Republicans have, although one can’t help but think they’ll be asking a lot of questions about privacy rights, etc.

More as it develops…