The Test — Jeffrey Toobin on President Obama’s next step in the evolution of his views on marriage equality.
Attorney General Eric Holder’s decision to cease defending the constitutionality of Section Three of the Defense of Marriage Act strikes me as very big news. It’s really all about President Obama’s self-proclaimed evolving position on same-sex marriage. But you’ll have to bear with me to explain why.
For starters, though, Holder’s letter is important on its own terms. It’s very unusual for any Administration to refuse to defend the constitutionality of a law that is already on the books. Of course, the Administration’s position is no guarantee that the courts, especially the Supreme Court, will agree with its interpretation of DOMA; but Holder’s view might well make an impression on Justice Anthony Kennedy, the Court’s swing vote and the author of its two most important decisions protecting the rights of gay and lesbian people, Lawrence v. Texas and Romer v. Evans.
But the letter raises an even more important possibility. Holder takes the position that “classifications based on sexual orientation warrant heightened scrutiny.” This may sound like legal mumbo jumbo, but it’s crucial. To explain why, we need to examine seventy years of constitutional law (in two paragraphs).
At the beginning of the New Deal, the conservatives on the Supreme Court struck down a great many of F.D.R.’s regulatory laws. When Roosevelt’s own appointees took control of the Court, they vowed that they would stay out of the business of telling Congress what it could regulate. If Congress had a “rational basis” for its laws, the Court would affirm them.
There was one important exception to this rule. In the famous Footnote Four of the majority decision in United States v. Carolene Products Co., in 1938, Justice Harlan Stone said that the Courts should give greater scrutiny to one category of laws: those that affect minorities. In real terms, that meant that if a law treated a racial minority differently from other people, the Court would apply what became known as “strict scrutiny” and almost always declare it unconstitutional. In the nineteen-seventies, the Court started ruling on laws that treated women differently. The Court said that these laws wouldn’t receive strict scrutiny (like racial laws), but still “heightened scrutiny” (rather than, in legal lingo, a “rational basis” test). In real terms, that has meant that the Court has now also struck down most laws that treat women differently.
This brings us back to the Holder letter. What Holder is saying here is that the courts should apply the same level of scrutiny to laws about gay people as they do to laws about women. Under the heightened-scrutiny test, Holder concludes, there is no justification for DOMA, so it is unconstitutional. (DOMA says that the federal government will not treat gay people who are legally married in their states as married people under federal law. So a married same-sex couple in Massachusetts is not treated as married under, for example, the Internal Revenue Code.)
Here’s the key thing. The arguments against DOMA are virtually identical to the arguments against bans on same-sex marriage. As the Proposition 8 trial in California demonstrated, there are very few, if any, justifications for denying gay and lesbian people the right to get married. Judge Vaughn Walker applied a rational basis test to Prop 8 and struck it down. He said it was completely irrational to discriminate against gay people in this manner.
But if a Court would apply heightened scrutiny to the ban on same-sex marriage, there is no way that it would be upheld—and that’s what Holder is advocating. In other words, Holder is now on the record, with Obama’s explicit approval, advocating a legal standard that will almost certainly result in bans on same-sex marriage being declared unconstitutional.
So here’s the bottom line: Holder’s letter locks Obama in. Sooner rather than later, the President will officially change his position and endorse the right of same-sex couples to get married.
More below the fold.
Life After Death — John Temple reflects on how his life in journalism has changed — and improved — since the demise of the paper he once edited.
Two years ago, on Feb. 26, 2009, journalists at the Rocky Mountain News learned their fate. E.W. Scripps President Rich Boehne told them the edition they produced for the next day would be the Denver newspaper’s last.
“It’s certainly not good news for you, and it’s certainly not good news for Denver,” Boehne told a throng of journalists assembled in the newsroom.
On that day, I was the editor, president, and publisher of Colorado’s oldest newspaper, affectionately known as “The Rocky.”
Today, I can’t speak to what the loss of the paper has meant to Denver. I am in Honolulu, running a start-up news service, www.civilbeat.com. But I can give you a picture of what it has meant for the men and women who were on the editorial staff when Boehne spoke those words. Then, they were shoved into the ranks of the millions of victims of the Great Recession. Today, most are among its survivors.
In spite of all the negatives associated with the death of a business — loss of income, meaningful work, camaraderie — I found that people, and perhaps especially journalists, are resilient.
A survey I just conducted of the 194 members of the paper’s editorial staff on its last day found that the blow of losing a job doesn’t mean life is going to be worse down the road. My survey wasn’t scientific. It’s possible that those who didn’t respond are struggling personally or financially more than those who did. But the 146, or 75 percent, who did respond have lessons for journalists and others who fear the instability of their jobs or who may have suffered a similar fate.
More (44, or 30 percent) said their life is better today than said it is worse (35, or 24 percent). The largest group — nearly half — said the quality of their life is the same. Among the reasons: more time with family, learning new skills, and new opportunities made up for the loss of a job. And maybe one more that went unsaid: fewer than 1 percent said they are unemployed, with 92 percent saying they’re working (the others are retired or studying). That’s extraordinary, considering a national survey that found just one-third of people who lost work had replacement jobs 15 months later.
There’s no question, though, that losing their job meant most needed to adjust to a new, lower, standard of living. Ninety-eight, or nearly 70 percent, are making less money today than they did when they were employed by the Rocky, and that doesn’t factor in benefits, a worry for many today. About 40 percent said they are earning “much less.”
While you might expect a correlation between income and how people feel about their lives, plenty of former Rocky employees making less money today said their lives are better now than when they were at the paper. The difference in the proportion of those making more and those making less who said life is better now was negligible.
One striking finding — perhaps encouraging for those who can’t imagine life after journalism — is that a greater percentage of those who left the profession said their life is better today than when they were at the Rocky. Half of those who responded who’d left the field said their life is somewhat or much better. Only a quarter of those who stayed in journalism said their life is better now. Of course, maybe the last few years of turmoil had just made life wear thin.
Evolution of the Crazy — Kevin Drum remembers the good old days of moderate Republicans under Ronald Reagan.
Even after writing about this for most of the past decade, it’s hard to fathom. When Ronald Reagan was elected, it seemed at the time like the ultimate triumph of hardcore right-wing politics. It was the Reagan Revolution! He was going to slash taxes, institute supply-side economics, bust the unions, appoint uncompromising judges, give the Christian right a seat at the table, and declare war on the welfare queens.
It couldn’t get any worse, could it? Well, yes, it could: in the 90s we got the Republican Party of Newt Gingrich and Grover Norquist, and they made Reagan look like the jolly old man he’s since been mythologized as. Taxes? They wanted a blood oath against ever raising them for any reason whatsoever. Gingrich gleefully led an assault on a Democratic Speaker of the House that destroyed his career, something no previous leader of either party had ever tried to do. The GOP flatly refused to negotiate on healthcare reform, they shut down the government in 1995, and then did their best to impeach Bill Clinton over a blow job. This was a take-no-prisoners party like we’d never seen.
But the Newt Gingrich of 1995 was, as Clinton said, still somebody you could deal with. He may have been right wing, but he cared about policy and he cared about getting things done. Today even that’s gone. Obama got virtually zero support for a stimulus bill designed to help get us out of the worst recession since World War II, he got no support for rescuing GM and Chrysler, he got no support for healthcare reform, and he got no support for financial reform even after a decade in which big banks were so far out of control they nearly wrecked the entire global economy. He’s been attacked from Day 1 as non-American, non-Christian, and non-patriotic. The filibuster became not just a tool of intense opposition to big legislation, but an everyday tool of obstruction. Tea partiers and Glenn Beck accused him of being a socialist for sure, maybe a Muslim too, and quite possibly a fifth columnist as well. Rush Limbaugh mocks his wife and prominent GOP leaders make jokes about whether he was born in Kenya. A government shutdown isn’t just something that might happen if Obama and Congress can’t find a workable compromise on the budget, it’s actively viewed as a positive goal. And, as Brownstein says, governors are no longer on the sidelines, sometimes working with the president and sometimes not depending on what’s best for their state. They’re fully enrolled in the war against Obama.
I don’t know how this turns out. A parliamentary system of government can operate this way, but not a presidential system. Somewhere, somehow, this wave has to crest and then break. But when? And how?
Doonesbury — Your very own newscast.