Following numerous lower court decisions striking down the federal marriage definition provisions of the 1996 Defense of Marriage Act, the U.S. Supreme Court is very likely to take up the question this year. In Monday’s Cato podcast, I discuss the long road that brought DOMA to the Court and explain a few of the complications, including a potential second case arising from the Ninth Circuit’s invalidation of California’s Proposition 8. The separate DOMA provision establishing that states aren’t obliged to recognize same-sex marriages from other states isn’t under challenge.
Posts Tagged ‘same-sex marriage’
Lawmaker tries to shut up linebacker, cont’d
I’ve got a post at Maryland for All Families following up on the free-speech controversy that flared up when Del. Emmett Burns, a Democratic lawmaker in Annapolis, wrote to the owner of the Baltimore Ravens demanding he silence linebacker Brendon Ayanbadejo, a vocal advocate of same-sex marriage (earlier). Discussion elsewhere: Rob Tisinai/Box Turtle Bulletin, Amy Alkon, Howard Wasserman/Prawfs, BaltimoreRavens.com (team’s front office supports Ayanbadejo), David Frum, and a First Amendment analysis from Hans Bader.
Update: Amid widespread public support for Ayanbadejo, Del. Burns has now backed off his attempt to muzzle the linebacker [Baltimore Sun] Did any prominent critics of same-sex marriage speak up in favor of the Ravens linebacker’s free speech? If not, they missed an opportunity to underline the principled nature of their oft-voiced concern that those on the “wrong” side of the marriage issue will face official retaliation.
Del. Emmett Burns to Baltimore Ravens: silence that troublesome player
Wow. Del. Emmett Burns (D-Baltimore County), an opponent of same-sex marriage, fired off a letter to the owner [PDF] of the Baltimore Ravens on legislative stationery demanding that he silence Brendon Ayanbadejo, an outspoken marriage advocate. Pretty much every conservative commentator in America (properly) denounced the Boston mayor and Chicago alderman for menacing Chick-Fil-A. I hope some of them will speak up against this abuse of government office as well. [NBC Sports Pro Football Talk]
More, Eugene Volokh finds it “a pretty inappropriate thing for a legislator, speaking in a way that stresses his role as legislator, to say to a private employer. There is no express threat of retaliation here, but such letters to private businesspeople — who often have to deal with legislature on various regulatory issues — tend to carry something of an implied threat, especially when they stress the author’s legislative position.” Note also that what Burns is “requesting” in his letter is accompanied by a peremptory demand for an “immediate response.” And update: following an outcry in which the public overwhelmingly took the player’s side, Del. Burns has backed down.
Clint Eastwood: the long ramp to the empty chair
At Cato at Liberty, I write about how the Hollywood great’s experiences as a small businessman in California — in particular his encounters with abusive litigation and with the lawyers and politicians who decline to do anything about it — might shed some light on his much-talked-about speech last night before the Republican National Convention.
P.S. My 2008 post on lawyers who become presidents. Reason on Eastwood’s libertarian politics, and not to forget his views on gay marriage (“Just give everybody the chance to have the life they want.”)
New at HuffPo: Bryan Fischer, the Miller-Jenkins case, and kidnap apologetics
The American Family Association’s zany yet high-profile Bryan Fischer is in the news for calling for an “Underground Railroad” by which his fellow believers would “rescue” kids from gay parents. In my new Huffington Post piece, just up, I trace two main threads in his argument — that gay parents are a menace to their kids, and that extralegal steps are called for to put “God’s law over man’s” – and show how the same messages have been emanating lately from some rather more respectable social-conservative quarters, in Princeton, N.J. and elsewhere. The controversy develops in part from the Miller-Jenkins custody and kidnapping case, long a topic of coverage in this space; in the latest development, Mennonite clergyman Kenneth Miller (applauded by Fischer) has just gone on trial for allegedly abetting the spiriting of Isabella Miller-Jenkins (no relation), now 10, out of the country in defiance of court orders.
Fischer now says he wasn’t suggesting that kids of same-sex couples be abducted from their beds by Christians unrelated to those children, but he definitely is encouraging believers to use extralegal force in cases that pit one of theirs against a gay parent in a custody dispute. He hints broadly that the next test case after Miller-Jenkins will be that of a divorced woman he describes who is losing custody to her gay ex-husband, and who just might disappear with the child into the “Underground Railroad” he promotes. Meanwhile, the Liberty University School of Law in Lynchburg, Va., whose faculty has multiple connections with Lisa Miller’s side of the Miller-Jenkins litigation, stirred criticism when related civil-disobedience precepts reportedly emerged as part of the curriculum in a class.
It might be added that this, like so many unsettling developments on the Right, is not without its parallels on the Left. Since the 1980s and the famous Elizabeth Morgan case, some feminists have operated a so-called Underground Railroad to enable mothers to defy court orders and abduct their kids away from fathers with shared custody or visitation orders. Usually some allegation is made of abuse, but the tactic has been used and applauded even where a judge has considered the abuse allegations and declined to accept them. (Law prof Nancy Polikoff discusses her mixed feelings about the Miller-Jenkins case here).
Reacting to the potential for lawlessness in this realm, Congress has passed at least two statutes of relevance: the International Child Abduction Remedies Act, signed by President Ronald Reagan in 1988, and the International Parental Kidnapping Crime Act, signed by President Bill Clinton in 1993.
Update Aug. 15: Jury convicts Kenneth Miller.
Chicken scraps
- I joined hosts Mark Newgent and Andrew Langer of RedMaryland on their BlogTalkRadio show Monday evening to talk about the Chick-Fil-A furor, the efforts of politicians in Boston and Chicago to use regulatory permissions to push the company around, and the resulting lessons for political and economic freedom; I went on to discuss my efforts to rally opinion in favor of Maryland’s new same-sex marriage law. You can listen here or here (UStream).
- Relatedly, here is Ted Frank’s comment: “Every chicken sandwich you don’t buy deprives anti-gay organizations of approximately $0.0001. Probably less than that. Or, you can do what I did and donate some real money that might actually make a difference to [Marylanders for Marriage Equality] to campaign about the gay marriage initiative on the ballot in that state.”
- “Unwise…won’t work.” The New York Times, oft indignant on other topics, seems rather tepid in criticizing the various city halls’ attacks on speech;
- No united flock: the restaurants in question, many run by strong-minded independent franchisees, seem to be politically a various bunch themselves.
- Speaking of non-united flocks, I think the ACLU’s Illinois affiliate may have a thing or two to teach its Massachusetts affiliate. Following the Chicago alderman’s threats to block the restaurant, ACLU of Illinois attorney Adam Schwartz was both forceful and correct: “what the government cannot do is to punish someone for their words. … We believe this is clear cut.” On the other hand, Carol Rose of the ACLU of Massachusetts strangely dismissed the Boston controversy as “little more than a war of words – which is protected by the First Amendment as core speech,” as if the Mayor had merely subjected the sandwich chain to a volley of verbal abuse, without more. Perhaps Ms. Rose wrote the piece while glancing only at Mayor Menino’s official letter to Dan Cathy, which stays generally within “war of words” territory, and was unaware of the July 20 coverage in the Boston Herald, which quoted Menino thus: “If they need licenses in the city, it will be very difficult — unless they open up their policies.” That’s no more a mere “war of words” than “If you run that editorial, I’ll have you arrested.”
- More coverage: Tom Palmer Cato podcast; Hans Bader of CEI First Amendment analysis; David Boaz, Roger Pilon and Brad Smith at Politico; must-read Glenn Greenwald column; earlier here, etc.
- And: “By handing Chick-fil-A a valid grievance, Menino and his ilk rallied popular support for the company” [Josh Barro, Boston Globe]
- Yet more: Pressure group friendly to Chicago alderman filed antidiscrimination complaint based on chain execs’ speech [Volokh; HuffPo (“negotiation”)] Some further thoughts on where the First Amendment’s relevant in the whole affair, and where it isn’t [Jim Huffman, Daily Caller]
Politics roundup
- Vice President Biden raises at least hundreds of thousands of dollars at AAJ annual convention in Chicago [PoL] Romney’s law and legal policy team [Brian Baxter, AmLaw Daily]
- Law star Ted Cruz advances toward Senate [David Lat, AtL]
- Can Republicans make hay out of Democrats’ platform endorsement of same-sex marriage? New Pew poll, as well as May polling round, offers reasons to doubt that [my new post at Maryland for All Families]
- “Why Citizens United Has Nothing to Do with What Ails American Politics” [Ilya Shapiro, The American, more]
- Bridgeport mayor Joseph Ganim, of gun-suit fame, a step closer to getting law license back after serving 7-year prison term for corruption [Courant] Eight more indictments as the Connecticut corruption scandals roll on [Conn Post]
- Rob McKenna’s star on rise in Washington; he’s pursued public-liability reform as the state’s attorney general [Daily Caller, earlier]
- Bypassing public financing, West Virginia judicial candidates pour their own injury-law fortunes into races [Richie Heath, Charleston Daily Mail]
- “How hot is it in DC today? Congressman Paul is using a paper money substitute because his actual money melted.” [Tim Carney]
July 30 roundup
- Backing down, sort of: “Menino says he can’t actively block Chick-Fil-A” [Boston Herald; Michael Graham on the Boston mayor’s curious standards] Glad for small favors: Maryland public officials have wisely stayed out of the fracas [my post at Maryland for All Families got an Instalanche, thanks Glenn Reynolds] Earlier here, here, here;
- Trying to start a business in Greece? What to expect [Reuters on shrimp farm]
- Proceeds of California’s Prop 63 “millionaire’s tax” were supposedly earmarked for mental health. Here’s where the dollars have actually been spent [AP]
- George Will on prosecution of whale-watcher for “harassing” humpback [WaPo, our January coverage]
- Tries to slide down banister four stories up, survivors now suing Chicago’s Palmer House hotel [Chicago Sun-Times]
- Link bait: the ABA Journal picks the 12 greatest courtroom plays;
- Prop 65 and carryout bags: “California, Land of the Free” [David Henderson]
When regulators retaliate
The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner. Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)
The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.” Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?
Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).
A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:
Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.
The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.
According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:
Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.
The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.
No, Mayor Menino…
In a free country you can’t keep out a restaurant because you dislike its owner’s politics [Boston Herald on Chick-Fil-A controversy, more on death through regulatory delay as a city tactic, mayor’s letter in PDF; good discussions at Amy Alkon and Popehat/Ken] Comments: “Inclusion. He gives this as justification for excluding someone.” [Ken R at Alkon] “Also, has Boston ever been ‘at the forefront of inclusion’?” [@thad_anderson]
For a powerful vignette of what can happen in certain big cities when the ruling government nomenklatura comes to view the local merchantry as there by sufferance, see John Kass’s recent Chicago Tribune column, recalling the struggles of his Greek immigrant grocer father, via David Zincavage.
P.S. Speaking of taking outspoken stands on same-sex marriage, Chris Geidner of BuzzFeed covers a (very successful!) fundraiser I helped throw over the weekend for like-minded folks in Maryland and D.C. If you’d like to donate as part of the event, you can do so here.