There’s another important point to be made that’s particular to the gay marriage context.  The unwillingness of opponents of gay marriage to have their opposition made public demonstrates the hollowness of the dramatic rhetoric their movement employs.  The “why does this matter to you?” question is a difficult one for opponents of gay marriage, as Jonathan Chait demonstrated last year in The New Republic when he convincingly took apart any argument against gay marriage based on anything beyond simple discomfort with homosexuality.  As much as opponents of gay marriage talk about heterosexual marriage being the backbone of our society and the fight to protect traditional marriage as being the real civil rights battle, the unwillingness to publicly state these views when there could be reprisals shows that they are not taken seriously even within the anti-gay marriage movement.  To the extent that there are actual threats being made against opponents of gay marriage, they cannot be nearly as serious as the threats faced by Civil Rights activists in the 1960s.  But because African Americans actually had their freedom and their welfare at stake, Civil Rights leaders and activists fought for their rights in the most public ways possible, whatever the costs.  If opponents of gay marriage truly believed that allowing gay marriage would have the dire consequences they claim, there would be no shortage of brave activists willing to publicly take this stand and suffer whatever consequences may come.

-AR

-AR

So you can imagine my irritation when I turned away from my property law studies to the New York Times, only to read more tales of rich dead dudes sticking it to the rest of us.

This year, billionaire Dan L. Duncan, soft-spoken hunter of polar bears, died, and it looks like his entire estate will pass to his heirs tax-free. Why, you ask? Why will we lose millions in tax revenue so that Duncan’s heirs can bask in even greater wealth? Like an old dead dude with future property interests, the whims of President Bush are coming back to haunt us. Back in 2001, Bush signed into law a one-year lapse in estate taxes to happen in 2010. (Apparently some of his cronies felt they had about another 9 years in them??) The NYT, being classy, notes this tax break has an element of the macabre:

Some estate lawyers worried that tax considerations might prompt their clients to keep an ill relative on life support through the end of 2009 to get the favorable treatment — or worse, resist life-prolonging measures to hasten a relative’s demise before the end of 2010.

I mean, really? Couple of million in taxes on an estate worth billions is worth making sure Gramps dies in 2010? Rich people are crazy.

Also, when is the ghost of Dubya going to stop haunting us already?

-AS

The law was intended to shut down a couple of ethnic studies programs in Tuscon, which focus on the influence of particular ethnic groups in American history and literature. This is a big problem, according to the state schools chief, Tom Horne, because . . . wait for it . . . the program teaches Latino students that they are oppressed by white people. That just cracks me up. I mean, I hate to break it to Horne, but Latino students don’t need an ethnic studies class to know that. Rest assured, they’ll learn that lesson one way or another.

But wait, there’s more. Horne also said the presence of the ethnic studies program has created an environment in Tuscon schools that is “just like the old South.” Whoa there! Looks like the Horne-ster may have been the product of America’s Failing Public Schools himself! Brief refresher. Old South: Lynching. Racial terrorism. School segregation. Jim Crow. Violence. KKK. Literacy tests. And most importantly? Notable absence of ethnic studies programs.

It says a lot about the pitiable state of things in Arizona that the man in charge of schools (the chief, no less) believes in pacifying students by teaching them complete nonsense. It takes a special kind of educator to get behind a program that seeks not to teach.

The ACLU has already argued the law violates the First Amendment and is hopelessly vague. Presumably, Horne’s going to be a little biased when he decides what classes “are designed primarily for pupils of a particular ethnic group.” But look. Isn’t a history class that excludes the perspectives of ethnic minorities in America designed primarily for white people? Maybe the real problem with the law is that, if taken seriously, it could knock out 99% of all public education in Arizona for lack of racial bias.

Finally — isn’t overthrow of the U.S. government more of an after-school club?

-AS

As has been discussed previously on this blog, no one can really can say what gives rise to a reasonable suspicion that a person is undocumented.  This lack of a non-racial basis for determining what raises reasonable suspicion renders the ban on racial profiling dead letter.  Without articulable standards, an officer has broad leeway to invent whatever reasons he chooses for finding a particular person suspicious, and as long as he avoids saying, “Well, doesn’t she Mexican to you?” it will be nearly impossible to prove that the ban on racial profiling has been violated.  The lack of articulable standards also means that enforcement of the law will be imprecise, and many people will be asked for papers who are American citizens or legal residents.  Because being Latino is a baseline requirement for suspicion of being undocumented in Arizona, whether we admit it or not and regardless of whatever other factors may or may not exist, this burden will be borne solely by the Latino community even if police officers act in good faith and do not target anyone solely for being Latino.

The “the bill doesn’t allow racial profiling because we say it doesn’t allow racial profiling” argument follows similar logic to the infamous John Yoo “what we’re doing isn’t torture because I’m telling you it isn’t torture, and in any case the United States doesn’t torture anyone ’cause that would be illegal” memos.  Given the racial dynamic to this issues, perhaps a better analogy would be the “separate but equal” fiction that American law recognized in the nine decades between the adoption of the 14th Amendment and Brown v. Board of Education.  Much like the Arizona bill’s “no racial profiling, honest” provision, the separate but equal doctrine lent segregation a sheen of neutrality that was completely detached from the reality of what motivated Jim Crow laws and how they were actually experienced.   Sure, blacks can’t go to white schools, but whites can’t go to black schools either, so who really gets to complain?  Fortunately, the Warren Court intervened in Brown, saying, in essence, “Jesus Christ, you fucking assholes!”

In full disclosure, I myself have not read the entirety of the Arizona’s immigration law.  Nor have I read the actual text of, for example, Mississippi’s pre-Brown school segregation laws.  I have no hesitation about condemning either.

-AR

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete. . .While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old. . . the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

-AR

And so I’m sympathetic to arguments against Elena Kagan’s nomination on grounds that the Court is already too urban, too Northeastern, and too Ivy League.  But this column by Kathleen Parker is the absolute worst way to make that argument.  The problem with urban/coastal/Harvard/Yale types is that they’re already overrepresented on the Court, not that they’re somehow less “ordinary American” or “mainstream” than anyone else.  This is one of the most pernicious beliefs driving the conservative movement today, that to be white, rural, and Christian is to be more American than those who are not.  When Bill O’Reilly speaks for and to “the folks,” he’s not addressing the members of Kagan’s synagogue.

This is especially true of the Tea Party movement, and its “we want our country back” rhetoric.  Aside from preposterous theories about his citizenship, claims against the legitimacy of the Obama presidency are driven by the belief that, although Obama won clear majorities of the popular and electoral votes, “real Americans” voted for McCain.  Paul Waldman effectively destroys such claims, pointing out that a majority of the country is urban and reminding us that people in places thought of as quintessentially American, like Nebraska, are as far to the right of the political center as people in New York are to the left.

No single place or person could effectively stand in for America; there is no “mainstream.”  New York is no more and no less American that Mayberry.  But while the urban centers of the Northeast and West Coast are no less American than the small towns of the prairies, they are not all of America, and we should worry if they end up being the only areas represented on a body as powerful as the Supreme Court.

-AR

These deportations do not fit the standard popular image of the deportee: a temporary worker, maybe, being returned to his home country, probably Mexico. Like Padilla himself, people deported following criminal convictions may be long-term residents in the U.S., with jobs, families, homes, and responsibilities here. In my experience working as a volunteer in an immigration detention center, I met one man who was facing deportation to Mexico even though he spoke almost no Spanish — he moved to the U.S. when he was very young, and only learned English in school.

Given the sympathetic nature of these cases, and the close association with traditional criminal law protections the Court has upheld, maybe it should not have been a huge surprise that this case was successful. (Notably, only famously nutty Scalia and Thomas dissented.) But what makes the decision even more exciting is the way it was decided (major props to my fave Justice Stevens), because Stevens’ majority decision frankly acknowledges what the Court has long denied – that deportation is a drastic punishment:

[A]s a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

Later Stevens says that the severity of deportation, like banishment or exile, “underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” (The fact that Stevens used “her” when referring to the imagined lawyer only makes me love him the more.)

The other news, you ask? Judge Vaughn Walker (yes, that Judge Vaughn Walker) found the N.S.A.’s warrantless wiretapping program illegal. The government will now have to pay damages to the Islamic charity (and two of its lawyers, remarkably) it illegally surveilled in 2004. Hopefully the Justice Department will decide not to appeal the decision and waste more of our money defending these practices.

Also, Wonkette points out that almost all the oil drilling will be polluting the coasts of states that voted for McCain in 2008. Everybody wins today!

-AS

One annoying species of meritless hypocrisy charges are those that involve neutral categories being treated as something you either favor or oppose.  For instance, both left and right have been hurling charges of hypocrisy at each other for taking different stances on the anti-war protests of the Bush years and the Tea Parties of the past year.  “Whatever happened to dissent being patriotic?”  But nobody is claiming that the Tea Partiers have no right to protest.  Rather, the Tea Partiers are criticized because they are 1) wrong on the merits, 2) using violent, racist, and homophobic rhetoric, and 3) displaying a level of hysteria and fear of the president so detached from reality as to suggest that it is at least in part motivated by a certain characteristic that makes our current president unique from all of his predecessors.  (And in case anyone got lost in the run-on end to that sentence, yes, I’m calling them racist.)  By criticizing the Tea Parties for these reasons, I am not preventing myself from taking to the streets and denouncing the president next time someone takes us to war for illegitimate reasons.

A prime example of a surface-level hypocrisy charge that doesn’t stand up to scrutiny is this post from “The Corner,” in which the tragic Jonah Goldberg endorses a reader’s condemnation of liberals for invoking the Constitution in opposing the Patriot Act but dismissing concerns that the health care bill is unconstitutional.  The argument has some superficial appeal:  liberals loved the Constitution when Bush was making laws, but now that it’s Obama they don’t care!  But with any knowledge of history and consideration of context, it’s obvious that the difference between liberal reactions to the Patriot Act and the health care bill (and conservative reactions, for that matter) is not a change in opinion over the importance of the Constitution, but rather a difference of opinion in how the Constitution applies in a given situation.  Liberals have long interpreted the Constitution to give strong protections to civil liberties while giving the government wide discretion to regulate economic matters.  The different reactions to the Patriot Act and the health care bill are perfectly consistent with such an interpretation.

-AR

An even more disturbing example of this framing can be found in the headline of last night’s KTLA story on “scooping,” which poses the question of whether scooping is “sexual assault” or “a schoolboy prank.”  Reading the description of scooping in the article, it’s impossible to reach the conclusion that the practice is not sexual assault, regardless of whether or not it could also be considered a schoolboy prank.  I’m not sure what the consequence of defining it as a prank is, but it is not, as the headline suggests, that it is not sexual assault.

-AR