This week the Supreme Court will hear arguments over the constitutionality of same-sex marriage, and all eyes are on Justice Anthony Kennedy—as they should be, for the fate of marriage equality likely rests in his hands.
Unlike other cases that implicate personal privacy rights, the marriage equality cases appear before the court framed in part as a conflict between state rights and federal power. We don’t often frame social issues like marriage equality as being only about the balance of power between the federal government and the states. That’s because, aside from the last neo-Confederate holdouts, we’ve largely accepted that a person’s rights should not be defined by that person’s state of residence. In other words, we accept that a citizen of Alabama should be entitled to the same basic rights and protections as a citizen of California. But in both of the the marriage equality cases before the Supreme Court right now, the question is, “Is marriage a fundamental right, and if so, to what degree can states legally restrict that right?”
Framing the fight over marriage equality as a battle over federal and state powers has risks. The greatest of these risks is that it provides an opportunity for the conservative court to again limit the reach of federal power while granting states license to pass and enforce state-level marriage equality bans. Much like the battle over the constitutionality of the Affordable Care Act, the Supreme Court could do so in a way that looks like a win to marriage equality advocates but threatens broader equality rights overall. For Justice Kennedy, the key swing vote in these cases, this may be too good to refuse.
In NFIB v. Sebelius, the decision that upheld the constitutionality of the Affordable Care Act, Chief Justice John Roberts and the rest of the court embraced the legal argument that states have the power to limit the federal government when it came to establishing and administering the requirements of the federal Medicaid program. This was a radical re-understanding of the relationship between the federal government and the states. The law was upheld, but the decision fueled hard right social conservatives in attacking social benefits programs. It was a victory for social justice advocates, but one that has come at a steep cost, as states including Texas and Arizona push for ways to opt out of social benefit programs like Title X.
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Marriage equality faces a similar threat. In Hollingsworth v. Perry, the court will hear arguments as to whether Proposition 8, a California voter initiative that defined marriage as a union between a man and a woman, violates the federal Constitution. In U.S. v. Windsor, the court will hear arguments challenging the part of the federal Defense of Marriage Act (DOMA) of 1996 that defines marriage as “only a legal union between one man and one woman as husband and wife” in determining federal benefits.
Should the court defer to the states on the issue of defining marriage and uphold Prop 8 while striking Section 3 of DOMA, then, much like the battle over access to abortion care, the battle over marriage equality will move primarily to the states. And much like the battle over abortion access, it could very well be Justice Kennedy that takes it there.
For Kennedy, the issue of fundamental rights and privacy is a cornerstone in his legacy on the court. In 2003, he authored the opinion that struck state sodomy laws as an unconstitutional violation of the right to privacy in the landmark case Lawrence v. Texas. Eleven years earlier, when the court was asked to overturn Roe v. Wade in Planned Parenthood v. Casey, Justice Kennedy reportedly sided at first with the conservative wing to reverse Roe‘s foundational privacy ruling, but later changed his vote after meeting with Justice Harry Blackmun, the author of the Roe decision, who expressed his concern to Kennedy that history would judge him harshly should he be the vote to overturn Roe. With public opinion squarely in support of marriage equality, it seems likely that Kennedy is remembering Blackmun’s warning this week.
At least 31 states already have laws that define marriage as the union of one man and one woman. Why wouldn’t Justice Kennedy vote to respect those laws under the guise of reigning in the federal government? It’s just the kind of straw-man reasoning that justified his “support” of privacy rights in Roe, despite his future decisions that have done nothing but undermine that right. Next, he could do so in an opinion that would ultimately side with a same-sex couple.
"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."
The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.
The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.
The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.
In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.
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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.
Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.
The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.
Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”
He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”
Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.
Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”
Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.
Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”
“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.
CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.
The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.
Republicans came together in Cleveland this week to nominate Donald Trump at the Republican National Convention (RNC), generating days of cringe-inducing falsehoods and misleading statements on crime, the nominee’s positions on gender equality, and LGBTQ people.
Trump’s Acceptance Speech Blasted for Making False Claims on Crime
Trump accepted the Republican nomination in a Thursday night speech at the RNC that drew harsh criticism for many of its misleading and outright false talking points.
Among the most hotly contested of Trump’s claims was the assertion that crime has exploded across the country.
“Decades of progress made in bringing down crime are now being reversed by this administration’s rollback of criminal enforcement,” Trump claimed, according to his prepared remarks, which were leaked ahead of his address. “Homicides last year increased by 17 percent in America’s 50 largest cities. That’s the largest increase in 25 years. In our nation’s capital, killings have risen by 50 percent. They are up nearly 60 percent in nearby Baltimore.”
Crime rates overall have been steadily declining for years.
“In 2015, there was an uptick in homicides in 36 of the 50 largest cities compared to the previous years. The rate did, indeed, increase nearly 17 percent, and it was the worst annual change since 1990. The homicide rate was up 54.3 percent in Washington, and 58.5 percent in Baltimore,” explained Washington Post fact checkers Glenn Kessler and Michelle Ye Hee Lee. “But in the first months of 2016, homicide trends were about evenly split in the major cities. Out of 63 agencies reporting to the Major Cities Chiefs Association, 32 cities saw a decrease in homicides in first quarter 2016 and 31 saw an increase.”
Ames Grawert, a counsel in the Brennan Center’s Justice Program, said in a statement posted to the organization’s website that 2016 statistics aren’t sufficient in declaring crime rate trends.
“Overall, crime rates remain at historic lows. Fear-inducing soundbites are counterproductive, and distract from nuanced, data-driven, and solution-oriented conversations on how to build a smarter criminal justice system in America,” Grawert said. “It’s true that some cities saw an increase in murder rates last year, and that can’t be ignored, but it’s too early to say if that’s part of a national trend.”
When Paul Manafort, Trump’s campaign chairman, was confronted with the common Republican falsehoods on crime during a Thursday interview with CNN’s Jake Tapper, he claimed that the FBI’s statistics were not to be trusted given that the organization recently advised against charges in connection with Hillary Clinton’s use of a private email server during her tenure as secretary of state.
“According to FBI statistics, crime rates have been going down for decades,” Tapper told Manafort. “How can Republicans make the argument that it’s somehow more dangerous today when the facts don’t back that up?”
“People don’t feel safe in their neighborhoods,” said Manafort, going on to claim that “the FBI is certainly suspect these days after what they did with Hillary Clinton.”
There was at least one notable figure who wholeheartedly embraced Trump’s fearmongering: former KKK Grand Wizard David Duke. “Great Trump Speech,” tweeted Duke on Thursday evening. “Couldn’t have said it better!”
Ben Carson Claims Transgender People Are Proof of “How Absurd We Have Become”
Former Republican presidential candidate Ben Carson criticized the existence of transgender people while speaking at the Florida delegation breakfast on Tuesday in Cleveland.
“You know, we look at this whole transgender thing, I’ve got to tell you: For thousands of years, mankind has known what a man is and what a woman is. And now, all of a sudden we don’t know anymore,” said Carson, a retired neurosurgeon. “Now, is that the height of absurdity? Because today you feel like a woman, even though everything about you genetically says that you’re a man or vice versa?”
“Wouldn’t that be the same as if you woke up tomorrow morning after seeing a movie about Afghanistan or reading some books and said, ‘You know what? I’m Afghanistan. Look, I know I don’t look that way. My ancestors came from Sweden, or something, I don’t know. But I really am. And if you say I’m not, you’re a racist,’” Carson said. “This is how absurd we have become.”
When confronted with his comments during an interview with Yahoo News’ Katie Couric, Carson doubled down on his claims.“There are biological markers that tell us whether we are a male or a female,” said Carson. “And just because you wake up one day and you say, ‘I think I’m the other one,’ that doesn’t change it. Just, a leopard can’t change its spots.”
“It’s not as if they woke up one day and decided, ‘I’m going to be a male or I’m going to be a female,’” Couric countered, pointing out that transgender people do not suddenly choose to change their gender identities on a whim.
Carson made several similar comments last year while on the campaign trail.
In December, Carson criticized the suggested that allowing transgender people into the military amounted to using the armed services “as a laboratory for social experimentation.”
Carson once suggested that allowing transgender people to use the restroom that aligned with their gender identity amounted to granting them “extra rights.”
Ivanka Trump Claims Her Father Supports Equal Pay, Access to Child Care
Ivanka Trump, the nominee’s daughter, made a pitch during her speech Thursday night at the RNC for why women voters should support her father.
“There have always been men of all background and ethnicities on my father’s job sites. And long before it was commonplace, you also saw women,” Ivanka Trump said. “At my father’s company, there are more female than male executives. Women are paid equally for the work that we do and when a woman becomes a mother, she is supported, not shut out.”
“As president, my father will change the labor laws that were put into place at a time when women were not a significant portion of the workforce. And he will focus on making quality child care affordable and accessible for all,” she continued before pivoting to address the gender wage gap.
“Policies that allow women with children to thrive should not be novelties; they should be the norm. Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career.”
However, Trump’s stated positions on the gender wage gap, pregnancy and mothers in the workplace, and child care don’t quite add up to the picture the Trumps tried to paint at the RNC.
In 2004, Trump called pregnancy an “inconvenience” for employers. When a lawyer asked for a break during a deposition in 2011 to pump breast milk, Trump reportedly called her “disgusting.”
According to a June analysis conducted by the Boston Globe, the Trump campaign found that men who worked on Trump’s campaign “made nearly $6,100, or about 35 percent more [than women during the April payroll]. The disparity is slightly greater than the gender pay gap nationally.”
When Trump was questioned about equal pay during a campaign stop last October, he did not outline his support for policies to address the issue. Instead, Trump suggested that, “You’re gonna make the same if you do as good a job.” Though he had previously stated that men and women who do the same job should be paid the same during an August 2015 interview on MSNBC, he also cautioned that determining whether people were doing the same jobs was “tricky.”
Ivanka’s claims were not the only attempt that night by Trump’s inner circle to explain why women voters should turn to the Republican ticket. During an interview with MSNBC’s Chris Matthews, Manafort said that women would vote for the Republican nominee because they “can’t afford their lives anymore.”
“Many women in this country feel they can’t afford their lives, their husbands can’t afford to be paying for the family bills,” claimed Manafort. “Hillary Clinton is guilty of being part of the establishment that created that problem. They’re going to hear the message. And as they hear the message, that’s how we are going to appeal to them.”
What Else We’re Reading
Vox’s Dara Lind explained how “Trump’s RNC speech turned his white supporters’ fear into a weapon.”
Now that Mike Pence is the Republican nominee for vice president, Indiana Republicans have faced “an intense, chaotic, awkward week of brazen lobbying at the breakfast buffet, in the hallways and on the elevators” at the convention as they grapple with who will run to replace the state’s governor, according to the New York Times.
“This is a party and a power structure that feels threatened with extinction, willing to do anything for survival,” wrote Rebecca Traister on Trump and the RNC for New York Magazine. “They may not love Trump, but he is leading them precisely because he embodies their grotesque dreams of the restoration of white, patriarchal power.”
Though Trump spent much of the primary season denouncing big money in politics, while at the RNC, he courted billionaires in hopes of having them donate to supporting super PACs.
Michael Kranish reported for the Washington Post that of the 2,472 delegates at the RNC, it is estimated that only 18 were Black.