Howdy, kiddos! So, while I was down, I missed a
fair chunk of stuff. Also, I'm working from my broken laptop today, so y'all on
your own for research. Let's talk SCOTUS, shall we?
Recently, SCOTUS (the Supreme Court of The United
States, for those playing the home game) ruled not to hear the Prop 8
case on lack of standing grounds, and to over turn a lower court ruling on the
same ground. They also struck down DOMA. These two rulings make me happy,
naturally enough. I mean, I am gay. But I'm not entirely happy with
SCOTUS.
And I'll tell you why.
First off, Prop 8. Those suing were citizens,
because the government of California had basically said, "well, fuck
this" when the Northern California District Court struck it down on the
grounds that majorities cannot vote to vacate minority rights. These concerned
citizens took it up the line, and the Ninth Circuit Court of Appeals said the
same thing. When it came before SCOTUS, they took a sidestep.
First off, two lower courts had already used a
clear legal precedent to prevent the removal of minority rights by a majority.
A similar ruling on the part of SCOTUS would have been a massive step forward.
It wasn't even a hard ruling. Legally speaking, it was absolutely firm.
Prop 8 was created to perform an end run on the legally established right of
homosexuals to marry in California. It was a clear attempt to vacate a minority
right that had been legally established. Instead, they went for a "lack of
standing" argument.
Now, while those who were trying to get Prop 8
upheld did not have standing, it was a weasel move. The "lack of
standing" argument has been used to make a number of things go away. In
one case, Clapper v. Amnesty International, the court ruled that the
plaintiffs had no standing to challenge the FISA Amendments Act of 2008. FISA
allowed the NSA to perform surveillance without notice, warrant, or reasonable
suspicion. Actually, they didn't even have to suspect their target. All those
things Snowden leaked? That would be FISA at work.
And who were these plaintiffs? Lawyers,
journalists, and human rights activists who communicated with individuals
overseas and who would, under FISA, be viable targets for surveillance. After
all, they're talking to people overseas. What if they're secretly terrorists!?
FISA placed an undue burden on these people to
take extreme precautions ot protect the privacy of their clients and sources.
SCOTUS reason for throwing them out of court? Since they couldn't show that
they'd been targets of covert surveillance, they had no proof of clear
harm. Yes, you read that right. To point out the obvious, the most recent
person who demonstrated the ability to prove harm in these circumstances is
Edward Snowden, and he's being charged with treason.
And the others who would be able to make a clear
argument for direct harm are the actual terrorists the NSA steps up to provide
evidence against. And last I checked, we tend to toss such people in deep holes
and deprive them of as many rights as we can lay our hands on. Because hey,
terrorists.
So yeah. If you can't obtain secure documentation
outside legal channels, you can't sue to protect your right to privacy.
Next up: SCOTUS basis for the DOMA ruling, while
exciting and long overdue, was made on moral grounds. Legally speaking, there
unfortunately aren't grounds establishing homosexuality as a federally
protected class. And regardless of how it benefits me, the ruling was still
made using weasel language. The closest thing to a clear reason SCOTUS was able
to give for their decision was to declare a malicious intent on Congress part.
Which, as it can't be proved, means that SCOTUS disagreed with Congress, and made a
law go away.
Despite the unjust law, despite the need for
federal minority classification of homosexuals to prevent discrimination, I
can't get too excited when a branch of the government writes a pseudo-legalistic
argument to justify undermining another part of the government on the basis of
opinion.
So, on that front, woooo! DOMA's gone! But also,
a little unsettling that it's gone because five people decided it should be.
Now, I can almost hear people quoting Dr. King
Jr. on the justness of laws, and the ethical call to civil disobedience in the face of unjust laws. And I'm right there, I'm down. Problem is, SCOTUS has
been doing some kinda sketchy things here lately.
For instance, they've struck down portions of the
Voting Rights Act that protect minorities from specific forms of governmental
discrimination. What parts? The parts that require traditionally discriminatory
states to get Federal approval before they made changes to the way they run
elections. The essential claim is that the data is outmoded, and the
protections are no longer necessary.
Problem is, there's a rush to get voter ID laws
passed, there's been all kinds of fun little tricks with gerrymandering,
there's been multiple attempts to create laws that will not only attack illegal
immigrants, but allow for discrimination against legal Hispanic and Latino
populations — discrimination is alive and well. I mean, can you imagine people
like Sally Kern, Paul Ryan, or Todd Akin having direct access to vote for
changes to the election process without anyone checking their work?
Racism is alive and well in government. And the
even scarier thing here is that after the Court struck down those portions of
the act, Scalia went on the record as saying that the reason SCOTUS needed to
strike it down was because Congress kept passing it. So, just to be
clear: Congress passed a law to safeguard minorities. Congress, for once in
their miserable existence, maintained a law that actually had purpose and a
valid reason for existing. And SCOTUS struck it down because Congress wouldn't.
That should freaking scare you.
Next up: a rather nasty ruling against Miranda
rights. No, you read that correctly. Against Miranda rights.
Genevevo Salinas, in a 1992 case, was taken in
for questioning. He answered some questions that were pertinent to the
investigation, but elected not to answer
a specific question relating to whether his shotgun would match the murder
weapon. To clarify, this was investigative questioning, and he had not been
Mirandized.
In court, the prosecution used his refusal to
answer that question as a sign of guilt. Salinas appealed on the grounds that
he has the right not to answer questions, and that refusal to answer a question
before Miranda had been delivered could not be used against him in court.
SCOTUS disagrees. They ruled, 5-4, that silence
before being read your Miranda rights is not protected by Miranda rights. So
yeah. If the police come talk to you, and you don't want to talk to them, if
they can get you into court they can use that against you.
Now, our legal system is not so corrupt
that we have to fear the police. But mistakes happen. At the end of the day,
the system is made of people and people are generally horrible beings when they
act in large groups. So if there's circumstantial evidence, and you can't get
clear of it, the prosecution can now tip the jury in their favor if you don't
talk to the cops.
Oh, but no-one innocent would refuse to talk to
the cops. Right?
Cops come in, start talking at you. You know
you're innocent, they think you're not. And they start pushing buttons. Going
over and over the same material, working to trip you up, taking up your time.
Eventually, you get sick of it and walk out. The next time they want to talk to
you, you tell 'em to go for a walk.
Bam. You have just refused to talk to the police
in an investigation in which you are a suspect. Presented without context, you
now look guilty as hell.
So, while I'm happy that my rights as a gay man
are now on a more level playing field going forward, I have to say that SCOTUS
is starting to concern me. Admittedly, they are the check to Congress' balance,
and their power is clear and necessary. But when they start half-assing it,
making up reasons to justify voting their opinions, avoiding cases that are
clear violations of rights because the proof of rights violations is
classified, and stepping on Voter Rights because Congress won't, we have a
problem.
SCOTUS is arguably the most powerful body in the
US today. And abuse of that power should rightly worry all of us, even when
they abuse their power to rule in our favor.
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