27 June 2015

A Liberal High Water Mark

We've hit a liberal high water mark, despite the fact that nationally, both houses of Congress have Republican majorities and a majority of U.S. Supreme Court Justices were appointed by Republicans, and in Colorado, one of the two houses of the Colorado General Assembly is controlled by Republicans.  Both the U.S. Senate and the Colorado shift happened in the 2014 election, less than a year ago.

* This morning's decision by the U.S. Supreme Court in Obergefell v. Hodges allows same couples to marry on the same basis as opposite sex couples throughout the United States.  

This is the culmination of the gay rights movement that arose in part from the community of gay men formed starting in World War II when sailors discharged from duty for being gay were all dumped together in San Francisco, began in earnest with the Stonewall riot in 1969, gained urgency as AIDS disproportionately afflicted gay men, saw a serious setback in a U.S. Supreme Court ruling upholding criminal sodomy laws for consensual same sex intercourse in the 1986 case of Bowers v. Hardwick, state and federal legislation overriding a 1993 decision of the Hawaii Supreme Court legalizing same same marriage was a case of one step forward and two steps back.  But, gay rights made a series of courtroom gains simultaneously following and causing shifts in in public opinion.  The 1999 decision of the Vermont Supreme Court mandating civil unions but not requiring them to be called marriage was one of the first big victories.

Legislatures, referendums and lower courts had already brought gay marriage to about three-quarters of Americans (and seventeen countries outside the United States, including Canada, England, Wales, Scotland, Ireland, South Africa, New Zealand, all of Scandinavia, France, Belgium, the Netherlands, Luxembourg, Spain, Portugal and much of Latin America, but excluding Mexico where a constitutional right to same sex marriage was declared on June 14, 2015, but has not yet been fully implemented).  Public support for gay marriage had already reached 57-38 according to a Wall Street Journal poll on the eve of the decision percent when the Court ruled today.  Public support for same same marriage in the U.S. has solidified at above 50% by 2013, and one CNN poll in early 2015 had shown support as high as 63%.  

We can reasonably expect that support for gay marriage will continue to increase significantly over the coming year now that it is legal everywhere, because public opinion usually follows legal resolution of divisive social issue.  In contrast, when Loving v. Virginia struck down bans on interracial marriage, the bans still had strong majority support that continued for something like a decade after the decision was handed down.  Yet now, public support for legally permitting interracial marriage is nearly universal, even among former segregationists and far right politicians and political activists.  

There are rare cases where increased public support for a position taken by authoritative legal bodies (which is almost universal) does not translate into near consensus support over time - opposition to abortion, death penalty support, support for the establishment clause prohibitions on governmental religious statements, and opposition to the right to bear arms, are probably the most notable.  But, they are rare.  

Also, in cases of controversy, legislation and judicial action often finds an uneasy middle ground.  The U.S. Supreme Court's abolition of the death penalty, for example, lasted only a few years, but over time after the death penalty was legally permitted again, the legal system has chipped away at the circumstances when it can be imposed (e.g. in cases involving juveniles, in cases involving the mentally ill, and for most non-homicide offenses such as child rape) and has exercised strict judicial review that postpones most state level executions by a decade or more despite federal laws limiting the scope of collateral attacks on death sentences and other state convictions enacted in response to the strictness of judicial review of these sentences.

Importantly, another reason that legislative and judicial steps to legalize same same marriage have changed public opinion is that when this was done, none of the parade of horribles offered up by gay marriage opponents have materialized.  Some sex marriage had existed continually in some states since 2004 when Obergefell was decided.  Civil unions, which were same sex marriages in all but name, had been around since 1999.  The Netherlands started to allow same sex marriage in 2001 and our neighbor to the north, Canada, had followed suit by 2005.  No notable problems was caused by same sex marriage anywhere that it was legalized, in part, because allowing a couple to marry has minimal impact of people who aren't part of that nuclear family, and in part, because the number of same sex married couples as a proportion of all married couples in any place where same sex marriage has been legalized has always been tiny.

Obergefell also demonstrates the limits of American federalism in private law.  While the textbook theory of American federalism is that states have unfettered discretion to adopt varying legal regimes subject only to minimal federal interference in select areas, in practice, significant differences in private law between states in the face of a mobile and regularly interacting populace are very difficult to sustain.  A regime in which some states had gay marriage, and others did not, posed difficulties when, for example, the military allowed gays to serve, the Social Security administration tried to follow state law, and federal tax law and immigration law provisions dependent upon marital status had to be applied.  The U.S. Supreme Court's Windsor decision, which struck down the "Defense of Marriage Act's prohibition on federal recognition of gay marriages conducted in states where it was legal forced the federal government to recognize gay marriage at least some of the time, and once it did so, the ability of gay couples to marry in states that recognized gay marriage, even if they lived in states that did not, had already created an intractable problem to administer.  Even if the Supreme Court had decided to strike down merely the exemption from the full faith and credit clause in the Defense of Marriage Act and not struck down the ability of states to decide what marriages could be entered into in their own states, the effect would have been almost the same.

* In a sudden tipping point moment in the wake of a white supremacist's murder of nine black people having a prayer meeting at a historic AME church in Charleston, South Carolina, state officials in South Carolina, Alabama, and other states throughout the South are finally taking action to remove Confederate flags and symbols of Confederate leaders (mostly put in place in the 1960s as part of a backlash against the Civil Rights movement).  National park officials are following suit.  Major national retailers, including Wal-Mart, Amazon, Sears and K-Mart are moving Confederate flag products from their shelves.  Former Republican Presidential candidate Mitt Romney acknowledge that the Confederate flag is a symbol of support for racism that must come down and other Republicans have followed suit.

While the changes are mostly symbolic, they disavow almost half a century of public support at the highest level for racist right supremacists across the South, undermining their movement culturally, and signaling, 150 years later, we may finally be at the point where William Faulkner's quote, "The past is never dead.  It's not even past.", may no longer apply to the Civil War, which is still not forgotten but perhaps is finally over.

* Medical marijuana is no longer a crime in almost half of the U.S. states.  Recreational marijuana use is now legal and regulated under state law in Colorado, where I live, and in Washington State, and is decriminalized or likely to be legal and regulated, in a few more.  Marijuana continues to be a crime under federal law for both medical and recreational purposes in every state, but the Obama administration's U.S. attorneys have acquiesced to state preferences by not prosecuting marijuana offenses that are legal under state law with a few exceptions, despite their clearly established legal authority to do so under the Supremacy Clause and case law interpreting it in the marijuana law context.  The change in public opinion about marijuana that state legalization or partial legalization has brought about has also created a strong risk of jury nullification in every marijuana offense prosecution, particularly in states where it is legal and widespread under state law.

More generally, states and the federal government are gradually repealing laws that have given the United States the world's highest incarceration rates, the toughest treatment of juvenile offenders, and the most intensive use of prolonged solitary confinement.  The U.S. Supreme Court's other decision today invalidated on a 6-3 vote, a major portion of the Armed Career Criminals Act which is one of the main mandatory minimum federal sentencing laws, for being void for vagueness (the vote to decline to apply the ACCA to the particularly offense of the offender before the Court was 8-1). Not long ago, Supreme Court has struck down juvenile life without possibility of parole sentences, at least prospectively, and a decision last week invited challenges to prolonged solitary confinement practices.

A series of high profile cases of alleged police uses of excessive force, which rose to national prominence following the shooting of an unarmed black teenager in Ferguson, Missouri by a policeman led to massive, prolonged protests, and serious state and federal investigations that produced real change and has prompted more aggressive treatment of similar incidents and policy changes elsewhere.

* President Obama has issued executive orders that have paused deportations for large numbers of undocumented immigrants who might be eligible for legalization of their status under future laws in the face of stalled legislative efforts.

* Congress passed and President Obama signed Obamacare (the Affordable Health Care Act or ACA), a couple of years after he was elected and this law has slowed health insurance cost inflation and dramatically reduced the number of uninsured people in the country, despite fierce opposition from Republicans.  The issue was central in the successful GOP effort to retake control of the U.S. House of Representatives and was an important part of their ultimate success in securing a majority in the U.S. Senate in the 2014 elections.  The U.S. Supreme Court rejected a challenge to that law (the most recent of several) based on its shoddy drafting, that would have crippled it yesterday in a 6-3 vote.

Increased availability of long term contraception, among other factors, have greatly reduced teen pregnancy rates.

Despite Congressional inaction, a strong labor market, grass roots activism, and state legislation, has pushed up the minimum wage and pay for low income retail and fast food workers across the country.

* The D.C. Circuit Court of Appeals has dramatically constrained the ability of the federal government to use Military Commissions, as opposed to civilian courts, to prosecute suspected terrorists.  The number of persons detained at Guantanamo Bay has likewise steadily declined despite strong Congressional efforts to thwart President Obama's ability to deliver on his promise to shut it down.  

Other Presidential and legal action to unwind draconian policies of the George W. Bush administration in the war on terrorism have been a mixed bag.  The authority of the president to indefinitely detain suspected terrorists as "enemy combatants" subject only to minimal habeas corpus review, and of the President to order the targeted killings of suspected terrorists has survived.  The administration has also continued to advocate for intrusive spying measures that impair privacy.  But, the administration ended the Iraq War (only to reengage at present to fight ISIS and support rebels against the chemical weapons using regime of Syria), and is tapering down our involving in the civil war in Afghanistan against the Taliban.

But, revelations of NSA data collection from U.S. citizens whose scope far exceed what the American public had been told, has resulted in major policy changes narrowing that authority from Courts and Congress fueled by an unlikely coalition of pro-civil liberties liberals who distrust national security agencies operating in secrecy and anti-government libertarian leaning conservatives.

* The proportion of Americans who identify as non-religious has rapidly surged to record levels, while the number of proportion of Americans who identify as Christian has reached record lows.

* The federal judiciary has more Democratic appointees, after six and a half years of President Obama's tenure, than it has had in a long time.

"As of June 11, 2015, the total number of Obama Article III judgeship nominees to be confirmed by the United States Senate is 311, including two justices to the Supreme Court of the United States, 53 judges to the United States Courts of Appeals, 254 judges to the United States district courts, and two judges to the United States Court of International Trade. The number of nominations currently awaiting Senate action is 18. There are currently 9 vacancies on the United States Courts of Appeals, 45 vacancies on the United States district courts, 4 vacancies on the United States Court of International Trade and 22 announced federal judicial vacancies that will occur before the end of Obama's second term."

The balance of power by the party of the President who appointed the federal judge is as follow (Democrats first, Republicans second, vacancies third).  None of the existing vacancies will change the balance of power on any of the existing circuit courts, although announced judicial vacancies could conceivably tip the balance.

SCOTUS 4-5-0
13 Circuit Courts of Appeal Combined 94-76-9

1st Cir. 4-2-0  Dem.
2rd Cir. 8-5-0 Dem.
3rd Cir. 8-5-1 Dem.
4th Cir. 10-5-0 Dem.
5th Cir. 5-10-2 GOP
6th Cir. 5-10-1 GOP
7th Cir. 3-6-2 GOP
8th Cir. 2-8-1 GOP
9th Cir. 20-9-0 Dem.
10th Cir. 7-5-0 Dem.
11th Cir. 8-3-1 Dem.
D.C. Cir. 7-4-0 Dem.
Fed. Cir. 7-4-1 Dem.

* The media widely acknowledges that global warming is real.  Renewable energy usage has surged, and a wide variety of hybrid, plug in electric and alternative fuel vehicles are now available.

1 comment:

andrew said...

Add a decision invalidating sectarian vouchers in Colorado to the high water mark list: