A New Year's Reprise

You can't beat a winning combination: a boy and his dog, peanut butter and jelly, and a fruit and his fly.

Yes, Anderson Cooper and Kathy Griffin will be ringing in the new year on CNN again. Just to remind those of you who didn't catch last year's hilarity, check it out below:

Key moments:

2:40—Kathy: Is [Britney Spears] still hot to guys? Anderson: I, well, uh...

4:55—Newsbabe holds up pic of Anderson's face on a popcicle stick, alluding to this magazine cover:

Check your local listings for all the fabulosity!

Update: and they didn't disappoint. Check out this little gem:

Black Gay is Beautiful*

It's been a while since I watched this, but I couldn't let Jon Stewart's takedown of Mike Huckabee go by without comment:

The Daily Show With Jon StewartM - Th 11p / 10c

Mike Huckabee Pt. 2

Barack Obama Interview
John McCain Interview

Sarah Palin Video
Funny Election Video

Specifically, I want to talk about the colloquy starting around 3:40 of the clip, where Jon Stewart says:

Religion is far more of a choice than homosexuality . . . talk about a lifestyle choice! That is absolutely a choice. That is absolutely a choice. Gay people don't choose to be gay.

On one hand, Jon's absolutely right. Being attracted to someone of the same sex is not a choice. However, I find the statement "it's not a choice" to be profoundly disempowering. The statement is a plea for mercy rather than a demand for respect. It implies that gays would be straight if they could, but they can't, so you should take pity on them. I think that this post makes the argument better than I can:

The case for/against gay marriage is hung-up on this idea of choice—i.e. we should frown on gay marriage because it's a deviant lifestyle. Or we shouldn't frown on it because it isn't a lifestyle, it's a biological fact. This is where the comparisons with race come in. But I always hated this argument. Whenever people say, "You should not discriminate against people because they didn't chose to be black," I hear the mild tones of wild liberal condescension.

Implicit in that logic is a kind of judgment, the notion that if I could choose, I obviously would choose to be white. But what if I just like being black? What if I could choose and would still choose black? Ditto for homosexuality. So what if you do choose to be gay? I understand that a lot of the science says you don't, but why do we accept this implicit idea that heterosexuality is, necessarily, what everyone would chose?

I'm not trying to minimize the bias and trauma that must come from being out, but a basic extension of humanity, a belief that those who aren't like me actually are like me, says that to be gay has to be more than coping with living beneath the boot of the ignorant. It's always about more than getting your ass kicked, no? What if you actually love the "more than?" What if it is who you are and what you choose?

Don't get me wrong, I'm not trying to say that it isn't important to educate the public that orientation is an inborn characteristic. I think that people who realize the immutability of orientation are more likely to support gay rights. However, as true empowerment, sexual orientation must be viewed through a different prism than just whether it's a choice or not. Rather, the question is whether one's identity, choice or not, is worthy of respect. In that way, orientation needs to be viewed as religion is viewed. Religion is subject to heightened scrutiny by the legal system not because it is immutable, but rather because it is an integral part of one's identity and "it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment." In other words, even if it were a choice, it would be a legitimate choice to make.

* This is not to say that Black isn't beautiful--it is.

No matter how good your Christmas presents are...

They will never match these. My personal favorite:

Strauss v. Horton, part IV: Why Footnote Four still matters

In a previous post, I asserted that while a fundamental right could be abrogated by constitutional initiative, a constitutional initiative that seeks to legislate against a suspect class would not be valid. I provided little explanation and said all would be explained on Friday. Well, it's Friday, and here's your explanation.

The test for determining whether a constitutional initiative is valid is whether it alters the fundamental structures of government. This not only refers to the allocation of powers between the branches of government and the allocation of powers between federal and state government (to the extent that state constitutional law can determine that—see Raven v. Deukmejian), but also the fundamental principles of republican government. One of these principles is that there should be protection of the rights of the minority against the majority. This protection is necessary to protect the integrity of the democratic process. Its foundational nature is expressed in footnote four of the U.S. Supreme Court's decision in United States v. Carolene Products Co. (footnotes omitted):

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

This footnote set the standard for heightened scrutiny of government legislation in the modern judiciary. The Court identifies three subjects of heightened scrutiny: substantive Constitutional rights, restrictions on the political process, and class legislation dealing with race, religion, or "discrete and insular" minorities that do not have the power to protect themselves through regular political processes. The difference between fundamental rights and suspect class status is the difference between the first paragraph and the third paragraph of Footnote Four. Constitutional rights are the people's substantive guarantees of freedom against oppressive legislation. They apply equally to all people. The Court gave these rights special status because of their inclusion within the Constitution. Suspect class status, on the other hand, is a protection not of a substantive rights, but the very integrity of the political system itself. Professor Jack Balkin explains:

According to the logic of the footnote, certain groups are shut out of the democratic process, relegated to the periphery. They are, to use Professor Brilmayer's expression, "insider-outsiders"—persons subject to the power of the political community yet excluded from participation within it . . . . Stone's very choice of words in the third paragraph—"discreteness and insularity"—connote the sense of being closed off from the political process, and (from a less sympathetic standpoint) excluded as impurities that are falsely believed to threaten a homogeneous body politic. Because the majority seeks to keep itself pure, it excludes the pariah from the political bargaining table, banishes the scapegoat to the periphery.

When a court declares a group to be a suspect class, it isn't saying that the class deserves more substantive rights than another class. Rather the court acknowledges that this is a group entitled to higher procedural protection in the political process. Because this class has outsider status based on their perceived otherness rather than any concrete evidence of relevant difference, they are vulnerable to legislation against them and lack political power to protect their rights through the political process. Therefore, any attempt to legislate against them as a class is subject to a more rigorous procedure: a showing of a compelling government objective and that the legislation is narrowly tailored to accomplish that objective.

Suspect class status is a procedural protection designed to protect the functioning of our republican system of government. Any attempt to legislate against a suspect class by means of constitutional initiative would amount to a change in the fundamental structure of government, and would be invalid.

Because it's Christmas

No substantive post today. Instead, enjoy these videos, compiled courtesy of Andrew Sullivan:

A classic to start things out:

Just in case you hadn't had enough sugar this Christmas:

When I was growing up I heard rumors about this, but I never really believed it existed.

Your daily LOLcat:

And because no video montage would be complete without him:

Broccoflute

The name says it all:

Strauss v. Horton, part III: Oregon Trail Edition

A lawsuit is very much like a game—there are players, referees, rules, tactics, strategies, and rewards. It appears from The State's brief in Strauss v. Horton,¹ the case determining the validity of Prop 8, that their game of choice is Oregon Trail. rather than go for an argument that is established by text and case law, the State has decided to blaze a new path.

The State's analysis of the validity of Prop 8 begins with the question of whether Prop 8 constitutes a revision of the California Constitution. It correctly articulates the standard for a revision as whether the provision "can be characterized as a change in the fundamental structure or foundational powers of California Government" (p. 28). It then undertakes a thorough and useful analysis of the relevant case law and concludes that Prop 8 is not a revision. The State gives two reasons for that conclusion: first, it argues that there is ample precedent for overturning fundamental rights through the initiative process. Second, the State argues that to rule that provisions against suspect classes are not subject to the initiative process would require the court to look outside of the four corners of the provision to determine its validity. It states that "If a court is confronted with an initiative addressing a right not yet deemed fundamental or a classification not yet deemed suspect, that court would find it extremely difficult to prevent the electorate from voting on the initiative or to invalidate the initiative post-election." (pp. 44-45). The court, therefore, would be limited under Petitioners' theory to those rights and suspect classes that are clearly defined by prior case law. The State concludes that "such a rule raises the possibility that the judiciary might appear to insulate its rulings from the initiative process by deeming certain rights as fundamental or certain classifications as suspect rather than deciding constitutional questions on narrower grounds." (p. 45).

The first argument is true, for what it's worth. I have never found the fundamental rights argument all that convincing in the first place. Fundamental rights are extrapolated from Constitutional common law, and just as legislation can amend the common law, so constitutional amendments should be able to amend constitutional common law.

The State's second argument is very sophisticated, but ultimately wrong. Limiting the court to suspect classes that are already declared is not a flaw in Petitioners' argument—it's the basis of the argument. As I mentioned earlier, the question on a revision is whether there is a change in the fundamental structure of the government. The relationship between government and the people is a part of that fundamental structure. While amending the constitution to legislate against a suspect class is a fundamental change in the structure of government,² there can be no change in the government's relationship with a class of people if legislation against that class is not already constitutionally suspect. In other words, you can't take away something that a person never had in the first place.³

Additionally, the argument that Petitioners' test would lead to the "appearance" of making rulings on broader grounds than necessary strikes me as disingenuous. This is not a real legal argument; it is a political one. However, what the argument likely means is that the Petitioners' test incentivizes broader constitutional holdings. Again, this is a feature, not a bug. Judicial minimalism is not constitutionally required, and in many circumstances, it is undesirable because it leaves the state of constitutional law unsettled. To the extent that the State is right (and I think that the effect would be marginal at best), this seems like it encourages the Court to actually interpret the state constitution and provide guidance to lower courts.

The State continues in its analysis by looking at the question of separation of powers. The state concludes as I did that the only reason that separation of powers would matter is as a means of determining whether prop 8 constitutes a revision, and that it isn't a very good argument. But this analysis is what makes their final argument so puzzling. The State spends 25 pages arguing that even if Proposition 8 is an amendment, that the court should strike it down because it abrogates fundamental rights without a compelling interest. In the next 25 pages of argument, nowhere does the state give any textual basis for the court's authority to strike down an amendment to the constitution on those grounds. Rather, it argues that rights protected by Article 1 of the California Constitution have a privileged status and were intended to be inalienable by the framers. Further, the initiative process was not intended to apply to article 1 rights. As a result, the court should only allow an amendment to article 1 protections when that amendment would survive strict scrutiny.

This test is as unsupported by existing case law and the text of the constitution as it is unnecessarily confusing. It would be the legal equivalent of traveling from Los Angeles to San Fransisco by going through Denver, if there were no roads connecting Los Angeles and Denver. First, the idea that there are extratextual limits on how a constitution can be amended goes against the principle of separation of powers and constitutional government. This interpretation would give the court not only the power to interpret the constitution, but also to prevent the people or the legislative branch from amending that document. It also implies that the courts have access to a higher, unwritten and unamendable law that supercedes the constitution, an unacceptable conclusion. Because the constitution is the supreme law of the state, the only legitimate restrictions on the amendment process are procedural. Procedures must be within the text and must be clearly expressed.

The State's argument is doubly mystifying because all of its arguments fit so well onto the amendment/revision framework. The very fact that the revision/amendment distinction exists is evidence that the framers wanted some changes to be subject to more than a majority vote. That the framers described Article 1 rights as inalienable is also evidence of their special status. Therefore, it would make sense to argue that these provisions, read in tandem, require restrictions to article 1 rights to go through the revision process rather than the amendment process. Rather than argue the application and extension of a clearly established procedure for overturning prop 8, the State decided to play their own version of Oregon Trail. It shouldn't be surprised when their argument dies of cholera.

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1. I covered the Petitioner's argument here and discussed some of the political pressures regarding the decision here.

2. But didn't I just say that fundamental rights could be changed by initiative? The distinction is something that requires its own post. Tune in on Friday.

3. Am I saying that if Prop 8 was enacted before in re Marriage Cases that it would have been legitimate under the California constitution? Yes, I am.

If you need a last-minute Christmas gift

...I can't help. However, if you want to be irresistible for your New Year's Eve party, you have two options:

A: Hamburger-scented body spray (not kidding, click the link and prepare to be horrified); or

Urban Humanity. Check out their clothing designs for your next night out. A few examples:

If only in my dreams...

Just a reminder to keep the troops in your thoughts and prayers this holiday season.

Here I sit, broken hearted...

While i was Christmas shopping, I noticed something that I hadn't seen in a while: bathroom graffiti.

This would be no big thing for most people, but I hadn't seen any for quite a while. BYU naturally erased any graffiti that appeared on bathroom walls immediately. However, when I was doing my undergrad, I had the opportunity to see many a stall covered with graffiti. From classic poems to offers of goods and services to political debates, bathroom stalls were always a source of entertainment and fascination to me.

Apparently I'm not the only one. Latrinalia (apparently bathroom graffiti has a technical name—who knew?) has been studied by anthropologists and archaeologists. apparently graffiti has been found in restrooms in Pompeii, and the content of that graffiti was basically the same as it is now. In fact, the Romans used to revere Venus Cloacina as goddess of the Roman sewers—prayers to her were in the form of rhymed verses.

I had a college professor who, only half-jokingly, said that bathroom graffiti was a cradle of true democracy. He likened it to the graffiti on the Berlin Wall--a place where vulgar and lofty ideas are displayed side by side, and the censor's paintbrush only provides a fresh canvas. I'm not sure about all of that. I just find myself entertained by statements that have later been altered by subsequent users in a series of ever funnier edits. I wonder whether anyone has actually called the phone number carved into the plastic of the toilet paper dispenser. And I take solace in the fact that even though most poets write in blank or free verse, the shithouse poet will make sure that his poems rhyme properly.