Wednesday, June 26, 2013

The fall of DOMA raises an important legal question few are discussing

I have wondered about this but haven’t seen it discussed anywhere else before.  Michael Austin at Ars Politica http://ivn.us/ars-politica/2013/06/26/the-next-marriage-battle/ raises an important issue deriving from the Supreme Court’s ruling that the Defense of Marriage Act is unconstitutional.  It has to do with Article IV, Section I of the Constitution, which says that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”  The question becomes: “If the federal government must recognize the legal marriage contract of a state that allows same-sex marriage, then would states that ban same-sex marriage have to do the same, even if that ban is written into their constitution?”  Austin notes that we are likely to see a considerable amount of litigation addressing this issue.

The legal definition of marriage has a lot to do with the types of legal judgments—about things like property rights, child-custody decisions, contracts, inheritances, etc.—that constitute the core purpose of the Full Faith and Credit Clause. The federal court system is going to have no shortage of difficult—and invariably interesting—questions to decide as these cases work their way through the system.

Today’s decisions put us on the road to one of those “house-divided” moments that Abraham Lincoln was always talking about. Thirty states now have a constitutional requirement NOT to recognize the legal actions of other states—a condition appropriate for a loose confederacy like, say, the Eurozone or the Delian League, but it is not how actual nations are supposed to work. The purpose of the Full Faith and Credit Clause is to prevent precisely this kind of situation from arising or being allowed to continue. Both Madison and Hamilton believed that, if we cannot be secure in our fundamental legal standing from one state to the next, we do not live in anything that can be legitimately called a nation. The next marriage battle, therefore, will not be about inheritance rights and property divisions; it will be about whether or not we are a country.

Let’s say a same-sex couple legally married in New York must move to Georgia because for example one partner is transferred by her employer.  Georgia has passed a constitutional amendment to ban same-sex marriage.  Even though it is illegal for same-sex couples to marry and enjoy the benefits of marriage under Georgia law, can Georgia effectively void or refuse to enforce or recognize the legal marriage contract granted this couple by the State of New York particularly now that the Supreme Court has ruled that the federal government has a Constitutional obligation to recognize the marriage contracts granted to same-sex couples in 13 states?  And, if states that ban same-sex marriage have to honor the marriage contract granted same-sex couples by other states, then does that not make the ban on same-sex marriage by some states moot?  A same-sex couple living in a state that bans same-sex marriage can simply travel to a state that grants same-sex marriage, get married, and return to the state that bans same-sex marriage with the right to enjoy all of the legal benefits of marriage.


These are interesting legal questions with tremendous ramifications.  

Monday, June 17, 2013

Get over it. You have no privacy.


Until now, I haven’t posted about the NSA controversy because I wanted to give the whole issue of privacy vs. security from terrorist threats some thought.  I’ve concluded that Americans, indeed anyone in the developed world, must come to grips with the fact that no one has privacy any longer.  If you want privacy then give up your access to the internet, dispose of your cell phone, never use email, never shop online, wear a disguise whenever you are in public, don’t own a car or drive, and pay with cash only.  Even those extreme measures are probably not enough to secure your total privacy.  We have sacrificed privacy for the convenience of living in a modern world.
When I was born, my parents lived in a small town.  They knew everyone in that town.  Everyone in that town knew them.  Everyone knew when my dad went to work and when he came home.  Everyone knew just about everything my mother did as principal and lead teacher at the local school.  Everyone knew the kind of car my parents drove, their preferences in food, the kind of clothes they wore and chose for my brother and myself.  Everyone knew what radio shows they listened to, what books they read and what movies they attended.  Everyone knew what church my parents went to and how often they went to church.  My parents had very little privacy.

My parents moved to the big city of Atlanta when I was seven.  They got to know a few families who lived in our neighborhood.  Many people in the State government department where my father worked knew him, although none of those people lived close to us.  My mother knew most of the people who taught with her at the county public school where she was a teacher but none of them lived in our neighborhood.  My mother got to know many of the parents of kids who attended the school where she taught but her school was in a different school district from the school my brother and I attended, so none of the parents of kids in mother’s school lived near us.  The local pharmacist knew the medicine our family doctor prescribed for us but he kept that information a secret as did our doctor, who maintained only hand-written paper records of our medical histories all locked away in filing cabinets in his office.  We barely knew the people who worked at the local grocery store where my mother bought groceries and no one there had any record of what she bought.  We lived in the suburbs of Atlanta but at that time there weren’t any suburban malls so my parents bought most of their clothes, furniture, toys for us, etc. at the three large department stores in the center of Atlanta.  We got our TV reception over the air so no one knew what shows we watched unless we told them.  There was no way to monitor the clicks of the dial my parents turned to change channels on the TV.  We didn’t attend a lot of movies but when we did, we went to large theaters in downtown Atlanta and watched in the dark with hundreds of people we had never met before and would probably never see again.  In short, once my parents moved from the small town where I was born to the big city of Atlanta, they had much more privacy.

Today, my wife and I live in a much, much bigger Atlanta than my parents knew.  And, yet, we have, if anything, less privacy than my parents had in the small town, not to mention the near complete privacy they had in big city Atlanta when they moved there.  Most big box, department, grocery stores and pharmacies where my wife and I shop have a detailed record of our purchases which people we don’t know mine for information about our shopping preferences so their companies can “target” us with special ads.  When we go on the internet, as we do everyday, every site we visit monitors how often we visit and the pages we click.  Amazon knows enough about us to “recommend” the next book we should read and what music or movie we should buy on DVD or download for our enjoyment. Online merchants know my shoe, pant and shirt size and my preferences for style and color.  Google knows what topics I search for on the internet and how often I search.  Our email carrier has a complete record of our calls.  Our doctor now enters all of our medical history into a medical database accessible, with our permission, by any specialist that might treat us.  Our pharmacist has access to a complete online record of the medicines we take.  When we shop in a store, drive or walk on the street, park in a parking lot, visit a park or go anywhere, we know that private businesses and government agencies are recording video, and often sound, of our every move.  In short, we have very, very little privacy today compared the privacy my parents had when they lived in Atlanta.

We have lost our privacy to technology and the convenience of a modern world.  On the other hand, we have regained many of the things my parents lost when they moved from the small town to the big city.  Our healthcare providers today are able to monitor our total health much the way the small town doctor could monitor the total health of my parents.  Online and brick-and-mortar retailers can recommend things we might like much like the local merchants in my parent’s small town because they, like the small town merchants, know our buying habits and personal preferences for food, clothing, and so on.  My parent’s small town was a safe town largely because the residents watched out for each other.  If a stranger came to town, someone would spot him right away and monitor his every move.  You couldn't get away with much in that small town because you were constantly being watched.  The video surveillance that surrounds us today makes us safer.  Criminals and others that would do us harm might not be prevented from committing their first crime but have a greater chance of getting caught and convicted before they can have a long criminal career mostly because they run a great risk of being caught on camera.  Friends and relatives in my parent’s small town were always available to suggest a movie, book, radio program or TV show my parents might like and were always curious about their choice of entertainment.  Online media providers now do that for us and their track record of being right is probably better than that of my parent’s small town friends and relatives. 
As I said, the only way to gain total privacy in this totally connected world today is to withdraw from the world, retreat to a cabin in the woods, avoid most technology, and remain a recluse.  Communicate with another human being only when you are alone, speak in whispers, and check your location carefully for monitoring devices before you speak.

Bottom line: Forget privacy.  You don’t have any.  Conduct your business accordingly.

Thursday, June 6, 2013

Have we finally turned the corner on same sex marriage? Perhaps

As of August of this year, 12 states and the District of Columbia will have legalized same-sex marriage (MA, CT, IA, VT, NH, DC, NY, WA, ME, MD, RI, DE, and MN).  Read more about state legalization here: https://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

A new poll by the Pew Research Center sugggests that we may have turned the corner on same-sex marriage.  At least that is what the overwhelming majority of Americans think.  Nearly three-quarters of Americans, including nearly 60% of Americans who oppose same-sex marriage say they now think that the legalization of same-sex marriage in the United States is inevitable.  That is a substantial change from 10 years ago when only a bare majority of Americans (59%) thought same-sex marriage was inevitable.
Why the change?  

The Pew poll suggests that more Americans accept same-sex marriage because more Americans now know someone who is openly gay or lesbian including a family member or close friend.
Gay and lesbian Americans who came out over the last several decades did this country a great service.  They allowed Non-gay/lesbian Americans to get to know them.  And guess what?  Straight Americans discovered that gays and lesbians weren't strange or dangerous or deviants or even that unusual.  They were just normal Americans who wanted nothing more than to be treated like everyone else.

Here is a chart from Pew that tells the story.  You can also see it and read more about the poll here.



































Tuesday, June 4, 2013

Their hormones made them do it


Republican Senator Saxby Chambliss (R-GA) today offered a new excuse for sexual abuse in the military.  According to Saxby, who thankfully is leaving the Senate after he finishes his current term, young men (or is it just men) who abuse women in the military just can’t help themselves.  The poor darlings have raging hormones.  I guess Saxby thinks we should be very careful about asking men with too much testosterone to abide by the law and NOT rape women.  Please write old Saxby here and tell him what you think about it.  Should the guys just be allowed to be “GUYS" or should they have to treat women with respect regardless of how much T they have floating around in their bodies?
Here is the quote from Chambliss:

“The other thing we have to remember. Is we think about making changes to the UCMJ in this respect. The young folks who are coming into each of your services are anywhere from 17 to 22 or 23. Gee whiz, the hormone level created by nature sets in place the possibility for these types of things to occur. So we’ve got to be very careful how we address it on our side.”
Maybe "C" has just been taking to much "T" for his low "T."  He can't help himself.