Hidden Time Bomb in the DOMA Case?

The Orwellian “Defense of Marriage Act” seems to have had a bad day with the Supremes yesterday, which is a good thing.  Let’s assume that the Court strikes down section 3, which bans federal benefits for same-sex couples, and does what the plaintiff wants, namely, make one’s marital status depend upon which state the couple is in.  Since Edith Windsor and Thea Spyer were in New York, and New York recognizes same-sex couples, they are married for federal purposes.  (It’s a bit more complicated than that, but for our purposes here, it’s good enough.).

That might raise more questions than it answers.

Suppose Molly and Sarah get married in California.  Then, for reasons known only to themselves, they decide to move to Oklahoma, which of course does not recognize same-sex marriage.  Then Molly dies and Sarah wants Social Security survivors’ benefits.  Does she get them?  The answer is not obvious.  Molly and Sarah were legally married in California, but they lived in — and were thus citizens of — Oklahoma.  Which state is the federal government supposed to listen to?

At the argument yesterday, Chief Justice Roberts immediately grasped the problem.  (He’s conveniently obtuse when it comes to things that are politically inconvenient to him, and never resists making absurd legal claims, but he is no dummy).  Say Ms. Windsor and her spouse had moved to North Carolina, he asked Roberta Kaplan, her lawyer.  Would they qualify for federal benefits?  No, said Kaplan: it would turn on domicile, not state of marriage.  But her answer hardly carries the force of law.

One could see why that would be the answer — it is the state of citizenship — but one could also see why it wouldn’t: it might interfere with the right to interstate travel, which the Court has repeatedly held to be a fundamental right.  If the answer is that benefits eligibility turns on the state that approves the marriage, then one can imagine the development of a thriving marriage industry in states that approve same-sex marriage.  (That industry has already developed, but now it would mean even more).

There is actually a third possibility, which might avoid the extremes but make things more complicated.  The answer might turn on the interpretation of the statute in question.  After all, as was mentioned yesterday, more than 1,000 federal statutory provisions mention marriage, and it could be a matter of statutory interpretation as to whether the marriage definition applies to the state of domicile or place of marriage.

But if that is the case, then it gives the Obama Administration important new power.  As every lawyer knows, the 1984 Supreme Court ruling in Chevron v. NRDC holds that courts must defer to reasonable administrative (i.e. executive agency) constructions of a statute.  President Obama could (and should) make it very clear that he expects agencies charged with interpreting statutes in their jurisdiction that mention marriage should interpret it to mean “place of marriage”.

Of course, the Court could answer this question in its opinion.  But if Justice Kennedy is the deciding vote, his practice is not to clarify these things, and in any event, the four centrist justices (Ginsburg, Breyer, Sotomayor, Kagan) will probably not agree to make it the state of domicile (Kennedy’s likely preference).  So it most likely will not be answered.

Put another way, even if the Court strikes down Section 3, this one ain’t over, folks.

Can’t make this stuff up

McCaskill quotes “faith, hope, and love” in support of gay marriage. Good news. Bad faith. Bad Greek.

Claire McCaskill endorses gay marriage. That’s an important sign. McCaskill knows Missouri, and if this is a winning position in Missouri it’s “game over.”

The partisan Democrat in me hopes the Supremes figure out a way to duck, and force the battle to be fought out, state-by-state, in referenda that will split the Republican coalition and alienate even right-leaning independents. If we were looking for a way to generate Presidential-level turnout in an off year, a bunch of referenda on gay marriage would be a good start. (However, that partisan Democrat isn’t all of me; on balance, I hope they do the right thing.)

But what you can’t make up is that McCaskill quotes First Corinthians 13:13 (“And now abide faith, hope, love, these three; but the greatest of these is love”) to justify her position. Yes, I know that the same passage gets used in lots of wedding ceremonies, ever since the Bible translators started translating ἀγάπη agape as “love” rather than the KJV “charity.” But that doesn’t make it any less silly.

I don’t say “love” is a bad translation; there isn’t a short English word that means what agape means, which as I understand it is a generalized goodwill. “Lovingkindness” seems more or less right, but as poetry it just doesn’t fit with “faith” and “hope.” But what it doesn’t mean is romantic love; the closest thing to that concept in Greek would be ἔρως “eros” (= desire).

If Saul of Tarsus was still thinking in Hebrew even as he was writing in Greek, perhaps the word he had in mind was “ahavah,” אהבה , which has the same ambiguity as “love” in English, being used both of religious devotion (“and you will love HaShem your god with all your heart) and of sexual desire (“Isaac loved Rebecca”). But since the word he actually wrote has no sexual connotation – and since Saul/Paul wasn’t actually much in favor of marriage, regardless of the gender identities of those being married – the quotation is far from apposite, both here and in the wedding ceremony.

Of course what’s really silly is the pretense that the Senior Senator from Missouri has been reading the Bible rather than the polls. St. Paul, after all, was just as strong on the virtue of “love” ten years ago. Yes, it makes sense to try to soften the blow for the churchgoers who will be dismayed by McCaskill’s new stance by acknowledging the authority of the Christian tradition. But the combination of bad Greek and bad faith is just a little bit hard to swallow.

Gingrich/Santorum: might-have-beens and stochastic dominance

Why didn’t they cut cards for who got to run for President and who got to be Deputy Dawg?

So it now comes out that, in February 2012, Gingrich and Santorum agreed to gang up on Romney, but the deal fell apart because neither of them would take second place. Santorum claimed the Presidential nomination on the grounds that his campaign was surging while Gingrich’s was sinking; Gingrich pointed out that he was older and had more wives.

Stalemate.

In some ways this isn’t hard to understand. The dream of the Presidency dies hard, and it’s not clear that being second fiddle on a losing Gingrich ticket would have left Santorum in a better place for 2016. Gingrich, of course, wasn’t going to get another shot. So I can imagine that each candidate preferred whatever his longshot odds were on beating Romney himself to being the VP candidate on a team with a good shot at beating Romney.

But it seems to me that – when the discussions happened – neither Gingrich nor
Santorum had as good as a one-in-five chance of beating Romney without the other’s help, and that the combination would have had no less than an even-money chance.

If so, they passed up a deal that was ex ante superior to no deal for both men. They could have agreed to a combination, and then cut cards for who got to be Top Dog and who got to be Deputy Dawg, giving each man at least a 25% chance of being the nominee.

So either no one in either camp was sharp enough to come up with this idea, or they didn’t trust each other enough to do it.

Too bad! Romney was a weak candidate, but against a Gingrich-Santorum or Santorum-Gingrich ticket Obama might have rolled up a 1984-sized landslide. Anyway, it would have made great political theater: 3 Henry VI meets the Keystone Kops.

Update See below for some very thoughtful and serious comments in response to my primarily snarky post. Some responses:

1. Yes, the Republic is healthier with two sane parties.
2. The Republicans aren’t currently a sane party. That was true with Romney as the nominee, just as it would have been true with a Santingrich or Gingorum ticket.
3. But the craziness would have been more evident to more people, and to the media, in the latter cases.
4. To have a two-sane-party system requires either (a) returning the Republicans to sanity or (b) having them implode and be replaced by a sane(r) party of the right (as the Whigs, after a delay, replaced the Federalists) or having them displaced by a new party occupying part of the same ideological space (as the Republicans displaced the Whigs).
5. Devastating political defeat for the current, Teahadi-driven GOP is the shortest path to either of the scenarios in (4).

It’s a fair question how many additional states Obama might have carried against Santingrich. North Carolina, Indiana, Georgia, Missouri, and Arizona all might have been in play, but probably not much else. But the popular-vote margin would have been substantially larger. More to the point, downballot Republicans would have suffered, either from supporting a lunatic national ticket or by not supporting it. Democrats might have taken back the House, and some state legislative chambers. That’s the lost opportunity.

Going forward, it seems to me that 2014 is won or lost depending on how closely the Democrats can make it resemble a Presidential election: high-turnout and hyper-partisan. The Republican Party is currently slightly less popular than genital herpes. The trick is to pin that label to every GOP candidate. “Friends don’t let friends vote Republican.”

Does Obama claim the power to take you out?

What extraordinary claim of Presidential power is Holder supposed to have made? If it’s unlawful to kill U.S. citizens on American soil without legal process, then police snipers can’t take out hostage-takers. If military force can’t be used domestically Washington had no right to use military force against the Whiskey Rebellion, Lincoln was wrong to order the killing of Confederate soldiers, and Eisenhower shouldn’t have sent the 101st Airborne to Little Rock.

Update Answer: No.

Holder to Paul:

“Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

****

I’ve been known to ask a snarky question from time to time, but right now I’d like to ask a completely serious question: What extraordinary power is Eric Holder supposed to have claimed for the President?

Surely it’s not extraordinary to claim that an official may kill a citizen on American soil without a warrant or an indictment: an FBI sniper can certainly shoot a hostage-taker if it seems the best way to save the life of the hostage. Is there any controversy about that? Or about the authority of that person’s supervisors, up to the President, to give the orders under which that is done?

Nor is extraordinary to claim that military force can – in extreme circumstances – be used against citizens on American soil: cf. Washington personally leading an army to suppress the Whiskey Rebellion, Lincoln ordering the attack at Bull Run, and Eisenhower sending the 101st Airborne to Little Rock. No indictments, no warrants: just the use of the military to assert government control against unlawful combinations.

Is it the combination of the specificity of a sniper going after a hostage-taker with the use of the military? If the Union Army had possessed drones, would it have been “assassination” to use one to kill Lee or Jackson – or Jefferson Davis – even away from an active battlefield? And yet that would have been the targeted killing of an American citizen on U.S. soil without any process of law.

If in fact Anwar al-Awlaki was waging war on the United States from Yemen, then I don’t see why his citizen status should have protected him from being killed, any more than citizenship would have protected an American who enlisted in the German army in one of the World Wars.

Now imagine that al-Awlaki’s base of operations had been Yonkers rather than Yemen. How would that have changed things? It would have made it much more likely that he could be captured rather than killed without undue cost. If he were walking down the street, so that he could be arrested (for murder or conspiracy or treason) or captured (as an enemy combatant), then the decision to kill him rather than giving him a chance to surrender would be unjustifiable. (Surely the mere difficulty of conducting a trial couldn’t justify it.)

If instead he were in a fortified place, or surrounded by armed men, or in a position to throw a switch setting off an explosion when the arrest attempt was made, then the practical situation would have been more like his actual situation in Yemen: killing him might have been possible at acceptable cost, capturing him perhaps not.

The demand for some sort of transparent accountability for such actions – now sadly lacking – seems to me sound, though the notion that having a judge sign a warrant would make everything better doesn’t. But to claim that killing al-Awlaki was “assassination” rather than warfare seems to me a mere rhetorical flourish unsupported by convincing argument, unless someone wants to argue that al-Awlaki was not waging war on the United States.

If Holder were claiming for the President the authority to decide, in non-exigent circumstances where arrest is practicable, that some citizen is merely better dead, that would be an outrage. (Though I’ve got a little list … .) But can someone point me to where Holder has made such a claim?

So I’m trying to figure out the jump from “people – even citizens – making war on the United States may lawfully be killed by military means, even inside the country” to “The President claims the right to kill anyone he dislikes.”

What am I missing?

[Given the sensitivity of the topic, let me reiterate the RBC’s “Play Nice” rules: no insults directed at posters or other commenters. If your only response to my question is that I’m a fascist or blind Obama-lover, you’re welcome to say so: on some other blog. I’d like to devote this comment thread to serious argument about the topic at hand.]

Mitt Romney writes his own obituary

“What I said is not what I believe.”

To Chris Wallace, about “47%.”

What I said is not what I believe.

Just for double irony: it’s clear that the 47% line was the one thing Romney really did and does believe: he said it again, in different words, in the Wallace interview, and made it clear that he was thinking mostly in racial terms. (Note that Romney did just as badly among Asian-Americans, who tend to be higher-than-average on the income scale, as he did among Latinos.)

ObamaCare was very attractive, particularly to those without health insurance. And they came out in large numbers to vote. So that was part of a successful campaign. [snip]

The weakness that our campaign had and that I had is we weren’t effective in taking my message primarily to minority voters, to Hispanic-Americans, African-Americans, other minorities. That was a real weakness.

We did very well with the majority population, but not with minority populations. And that was a — that was a failing. That was a real mistake.

WALLACE: Why do you think that was?

MITT ROMNEY: Well, I think the ObamaCare attractiveness and feature was something we underestimated in a — particularly among lower incomes. And we just didn’t do as — as good a job at connecting with that audience as we should have.

In other words, if only rich white folks were allowed to vote, Romney would have won. No wonder the Republican caucus on the Supreme Court is so enthusiastic about allowing Republicans in the state capitals to ensure white minority rule with a combination of gerrymandering and voter suppression.

If I were looking for empirical evidence of the existence of a benevolent Deity, the fact that this moral midget – who has yet to either congratulate his successful opponent or offer him help in governing the country Romney claims to love – never made it to the White House would have to rank fairly high on the list.