Posts Tagged: scndhanddreams



ELIZABETH MCINTYRE: stayinbedgrowyourhair: NO i don’t actually want to hear anything more…


NO i don’t actually want to hear anything more about obama’s “support” for gay marriage until his administration actually makes positive steps to support some type of federal measure

at the very least he/they could vocally oppose state measures intended to prevent…

Pretty sure we have a system called federalism that prevents Obama from doing this. Could he do some things at the federal level (e.g. sign that executive order extending federal benefits to same-sex couples that he didn’t do a couple weeks ago), of course. Can he demand that states recognize same-sex marriages? Absolutely not. Because that would be unconstitutional. And the last thing we need right now is for Obama to do something else that conservatives can jump on as being a big government takeover of anything (never mind the fact that, let’s be real, federalism has some good things going for it). The President saying “IT SHALL BE SO” is not the answer to everything. DOMA is unconstitutional for the same reason that a federal move to try to force states to recognize same-sex marriages would be unconstitutional — it cuts both ways.

I don’t understand why people can’t recognize that the world does not operate according to our personal political ideals. A presidential administration cannot do everything we want it to do, nor can it even do everything the President might want it to do. And to refuse to acknowledge the fact that Obama has changed the playing field in a significant way without changing a single law is discrediting the power of rhetoric and soft power.

It would be unconstitutional for Obama to say that it is now the law that states must recognize same-sex marriage. Definitely not unconstitutional for him to say that he thinks gay marriage bans violate the Constitution, rather than just that he personally supports the right of people to marry someone of the same sex.

His interpretation of the Constitution is of course not law. It’s not like I want him to say, “Now all gay couples are able to get married, because I say so.” I wanted him to say, “Our Constitution says we must treat equals equally, so I think gay marriage bans are unconstitutional.”

It would be like if Eisenhower had said, “I personally think school segregation is a bad idea, but education is a matter left up to the states.” I understand why Obama needs to take that position politically, but it still frustrates me.

(via assumingarguendo)

Source: stayinbedgrowyrhair

scndhanddreams replied to your post: loosebaggymonster replied to your link: North…

what is it about this that’s particularly constitutionally suspect, whereas the other 29 are not? granted, prop 8 might shake things up, but 28/29 similar amendments are not subject to constitutional scrutiny? i can’t find the text anywhere…

Sure. The text is: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”

First, I do think SCOTUS is likely to strike down the same-sex marriage ban in California, though because that case has kind of weird facts (Californians had the right to marry their own sex, then the voters took it away), it’s really analogous to Romer and they can rule narrowly, overturning the ban but not commenting on whether there’s a constitutional problem with gay marriage bans generally speaking.

Second, even without implicating the other 28 or 29 state laws or constitutional amendments, North Carolina goes further than any of the other statutes. This law doesn’t just outlaw gay marriage - it outlaws all recognition of any kind of domestic unions. Family law lawyers are concerned about the implications for domestic violence victims who are not married to their partner, unmarried parents will now have different custody rights than married parents, etc. Forget the gay/straight distinction - the distinction at issue here is married/unmarried, and there is precedent for SCOTUS holding that distinction violates EPC.

I wouldn’t think this will get all the way to SCOTUS, though. We’ll see, I guess.



Guess What?


Turns out Florida’s Stand Your Ground doesn’t work so well when you’re a black woman trying to defend yourself against your abusive husband, even if you actually don’t harm him at all (nor do you intend to).

This is why although I absolutely think SYG laws are bad policy, I didn’t want the conversation in the wake of the Trayvon Martin killing to be about SYG laws. Because the thing is, it wouldn’t matter what the law was. George Zimmerman was not prosecuted because he shot a black male teenager. Period.

To say the Trayvon Martin incident is only about a single issue is not terribly far-sighted, I think. Did racism play a role? Yeah, absolutely — if not in Zimmerman’s decision (and that’s partially what we’re having a trial for, right?), then likely in the officers’ decisions after the fact. Did the Stand Your Ground law have a role to play? Yeah, absolutely — if not in Zimmerman’s decision (and that’s partially what we’re having a trial for, right?), then likely in the officers’ decisions after the fact.

Did innumerable other factors, some perfectly legitimate and some illegitimate, also play a role? Of course. Very few people’s behavior is determined by one single motivating factor, and this was an event that involved dozens and dozens of people. So to say, “oh, we can stop talking about SYG because all this was is simple racism” is myopic and misguided.

And, to show my hand here — even if Stand Your Ground played NO role in the Trayvon Martin case at the time, the controversy afterward has thrown light on what I think is an incredibly problematic trend in criminal law away from imposing a right to retreat in favor of allowing deadly force, and I think any opportunity to reevaluate these laws should be taken and run with.

Completely fair. To be clear, I absolutely think SYG laws are a terrible idea, and I am glad that the Martin killing has hopefully given at least some state legislatures pause as they consider implementing these laws in their states. (Certainly it has in Massachusetts.) 

What I said above is that I didn’t want to the conversation after this killing to be about SYG laws. What I should have said is that I don’t want the conversation after this killing to be entirely about SYG laws. I’m not particularly concerned in Zimmerman’s motivations - there will always be bad actors. I’m more concerned with government sanction of Zimmerman’s actions. SYG laws are crazy. But even under SYG laws, there’s supposed to be a pre-trial hearing where the defendant makes his/her prosecution/arrest immunity claim. There wasn’t even an arrest in this case. Although I can’t see into the hearts and minds of those police officers, I do absolutely think the primary motivating factor in the lack of arrest was race, not SYG. 

Maybe this is just because I hang around way too many law students, but I’ve felt the conversation veer pretty quickly towards the horrible-ness of SYG laws. I don’t want us to think that this problem is solved even if we can get rid of SYG. So yes, let’s lobby to end SYG. But let’s also remember that our legal system valued the lives of young black men less than other lives before SYG and even if we repeal all those laws it will continue to do so. 

I agree, SYG is a problem. Racism is a much bigger problem. 

(via assumingarguendo)

Source: eamcintyre

scndhanddreams replied to your post: Maybe I’ll pull a Scalia for my conlaw exam

lmao. A+ for creativity! C- for legal integrity.

No worries, the rest of my class doesn’t have legal integrity either, so the curve should help me out. 


scndhanddreams replied to your link: JK Rowling’s New Book Comes Out Sept. 27!

YES. thank god it’s not more potter. i love it with an unholy love, but if it’s going to be more a la the epilogue, noooo thank you.

Oh, I pretend the epilogue to Deathly Hallows never happened. I considered actually cutting it out of the book, but I thought that might be a bit much.