Tag Archives: Rachel Slajda

Ring Around The Rosie

Publius at Big Government:

An anti-abortion group Tuesday released undercover video taken in its latest attempt to discredit an organization that provides abortions — footage of operatives posing as a pimp and a prostitute seeking health services at a New Jersey clinic.

The group releasing the video, Live Action, said it depicted a Planned Parenthood clinic employee offering to help cover up a sex ring so that its prostitutes could receive health services.

John Hudson at The Atlantic:

As with a lot Andrew Breitbart does, it’s wise to exercise a healthy dose of skepticism. The conservative media mogul who brought the world the Shirley Sherrod non-scandal, is now hosting a new undercover video about Planned Parenthood. In the video, a Planned Parenthood worker appears disturbingly eager to help two people receive abortions for 14 and 15-year-old girls without going through any legal provisions. When speaking with Planned Parenthood, the couple also suggests that the young girls are prostitutes. Despite that, the worker happily recommends an abortion provider that has less strict “protocols” regarding their age and identification

Kathryn Jean Lopez at The Corner:

Watching this new video that Live Action is releasing this morning, the best-case scenario for understanding what the heck might be motivating this woman is: She knows this goes on and she wants to make these kids as safe as possible. But she could be part of the solution and actually report this crime. The Live Action senario before her presents criminal behavior –  sex trafficking. And yet she meets it with even more. She even calls a colleague an awful name for being more “anal” about the rules. About sex trafficking? About child abuse?

Talking about underage girls at one point, she even offers her philosophy that an underage girl is “still entitled to care without mom knowing what the hell is going on.”

And apparently even if mom is far out of the picture and she’s slaving away for a pimp, birth control should be provided, abortions should be provided.

This particular video was taken of a clinic visit on January 11 in Perth Amboy, N.J. The timing of the video comes as New Jersey governor Chris Christie – who has already said “no” already for some Planned Parenthood funding — has a bill before him he could veto that would be another Planned Parenthood entry for some state and federal funds.

The release of the video this morning has been “expedited” by recent media reports that Planned Parenthood is onto Live Action’s most recent routine and wants the FBI involved. There is nothing Lila Rose would welcome more. (She has yet to receive any notification from Planned Parenthood or the FBI. All she knows she’s read in the media.)

From her undercover work, it is absolutely clear, Rose says, that “the perfect partner for a pimp is Planned Parenthood itself.” This Perth Amboy clinic presents itself “a save haven for sex trafficking.”

She’s confident both in the transparency of her group’s undercover work, and enthusiastic in the prospect of a full review by the Department of Justice about how Planned Parenthood officials flagrantly violate mandatory reporting requirements of the sexual abuse of minors.

Rose believes that the innocent unborn need to be protected, but also has a great love for these women who find themselves in these clinics. “Every prostitute is a victim,” she says.

“Planned Parenthood could be the first line of defense,” Rose says, for an Asian girl smuggled into the country for sex. Instead, in this particular Pert Amboy clinic, a sex trafficker was coached into how to make everything “look as legit as possible.” Coaching. “For the most part, we want as little information as possible,” she explained. The Planned Parenthood worker’s only obstacle to providing him the full “streamlined” services he wants to keep his business running is some auditing details she’s worried they could get caught on for abortions of these girls, in the country illegally, under 14 and 13, needing abortions. Saying – laughing — “You’ve never got this from me. Just to make all our lives easier,” she hands the pimp the name of another, non-Planned Parenthood clinic, which can get away with more. “They’re protocols are not as strict as ours, they get audited differently.”

When asked how long a girl might have to wait to get back to the work of the sex trade after an abortion, two weeks minimum is the answer. He protests, “We’ve still got to make money.” The clinic worker understands his predicament and so advises that the girls can still work “Waist up, or just be that extra action walking by” to advertise the girls who are still at full-body work.

It’s chilling. It’s ridiculous to know that in the wake of catching onto Live Action’s fieldwork, Planned Parenthood has reportedly warned its clinic workers to know there could be cameras on them. Another kind of alert is called for.

Weasel Zippers:

And this woman’s salary is paid with your tax-dollars.

Rachel Slajda at Talking Points Memo:

In a statement, Planned Parenthood said Live Action visited two Central New Jersey clinics on Jan. 13, including the one in the video. A spokesman for Planned Parenthood said that, immediately after the visits, clinic employees told their managers and called local law enforcement. It was not immediately clear, however, whether the woman in the video notified management or police.

The statement says “appropriate action is being taken” into the woman’s actions.

Planned Parenthood insists on the highest standards of care, and safeguards the trusted relationship we have with patients, families and communities. What appears on edited tapes made public today is not consistent with Planned Parenthood’s practices, and is under review. Phyllis Kinsler, CEO of Planned Parenthood of Central New Jersey (PPCNJ), has stated that, “the behavior of our employee, as portrayed on the video, if accurate, violates PPCNJ policies, as well as our core values of protecting the welfare of minors and complying with the law, and appropriate action is being taken.”

Live Action has not returned calls for comment.

The unedited video is not available. Live Action said in a release that it is sending the full footage to the FBI and state investigators.

After eight clinics reported the same strange visit within five days, Planned Parenthood reached out to the FBI, via a letter to Attorney General Eric Holder, calling for an investigation into a potential sex trafficking ring. In the letter, Planned Parenthood notes that the visits had all the earmarks of a hoax.

The FBI reportedly opened an investigation, Planned Parenthood said.

A spokeswoman for the organization told TPM that at least some of the individual clinics also called local law enforcement when they received the visits.

At least one of Live Action’s campaigns against Planned Parenthood turned up actual wrongdoing. At a clinic in Indiana in 2009, an employee was fired and another resigned after Live Action released video of them saying they wouldn’t report it when Rose, posing as a 13-year-old, said her 31-year-old boyfriend impregnated her.

Ed Morrissey:

If Planned Parenthood objects to this method of investigative reporting, then perhaps they’ll press for tough inspection regimes.  After all, as we have seen in Pennsylvania, the political activism of the abortion industry has cowed public officials into inaction while the poor and underage get exploited, maimed, and sometimes killed.  Obviously, state agencies that exist to protect women and enforce the law aren’t doing their jobs — especially not when the Amy Woodruffs of the world feel comfortable in telling pimps how to keep their 14-year-old victims secret and working “from the waist up” for two weeks after an abortion.

Congress needs to act to cut off public funding of Planned Parenthood entirely.  They get around $300 million a year from taxpayers, and as Live Action has repeatedly proven, routinely flout laws voters have set for the protection of women and children.  I suspect that subsequent video releases will result in more sanctimony from Planned Parenthood, followed by more firings.

Jed Lewison at Daily Kos:

So another weirdo wingnut James O’Keefe wannabe has released a hoax video targeting “the left.” This one was created by an anti-choice activist named Lila Rose and it targets Planned Parenthood. Rose, who collaborated with O’Keefe in the past, aimed to produce a carbon copy of his ACORN/pimp hoax videos, this time substituting ACORN with Planned Parenthood and O’Keefe’s pimp outfit with actors and actresses claiming to be part of an underage prostitution ring.

Rose is just now releasing the videos in which she claims that Planned Parenthood conspired to cover up the prostitution ring. She only leaves out one detail: Planned Parenthood officials, who instantly realized they were probably being punked, nonetheless went to federal authorities on the off-chance that Rose’s actors weren’t part of another O’Keefe style hoax.

Planned Parenthood, a perennial protest target because of its role in providing abortions, has notified the FBI that at least 12 of its health centers were visited recently by a man purporting to be a sex trafficker but who may instead be part of an attempted ruse to entrap clinic employees.

In each case, according to Planned Parenthood, the man sought to speak privately with a clinic employee and then requested information about health services for sex workers, including some who he said were minors and in the U.S. illegally.

Planned Parenthood’s vice president for communications, Stuart Schear, said the organization has requested an FBI probe of the man’s claims and has already fielded some initial FBI inquiries. However, Schear said Planned Parenthood’s own investigation indicates that the man has links with Live Action, an anti-abortion group that has conducted previous undercover projects aimed at discrediting the nation’s leading abortion provider.

Even though Planned Parenthood went to authorities (despite their confidence that they’d been targeted by an O’Keefe-style fraudster), more than a week later, Rose still released the videos.

Rose isn’t going to get anywhere with her fraud. The only question is which is worse: falsely accusing Planned Parenthood of complicity in a child sex ring or forcing authorities to divert resources from pursuing real crimes while they investigate whether her hoax was, in fact, a hoax. Either way, the only thing her actions accomplish is to further discredit the playbook of clowns like Andrew Breitbart.

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Filed under Abortion, Families, New Media

Fun With Jane And David

Michael Whitney at Firedoglake:

Jane Hamsher is with David House who is trying to visit Pvt. Bradley Manning at Quantico today while carrying a petition with 42,000 signatures requesting humane treatment for Manning. The military isn’t making it easy at all and detained Jane and David for two hours. We’re publishing her tweets as well as David House’s tweets here as a post in case you haven’t been able to follow them on Twitter (@JaneHamsher and @DavidMHouse

UPDATE: At 2:50pm the military released Jane and David, and told David he could go off base and come back on to visit Bradley. But visiting hours end at 3pm, so Bradley won’t get a visit. We’ll have more soon.

Jane Hamsher at Firedoglake:

I just wanted to say a quick thank-you to everyone today for your support when David House and I were being detained at Quantico.

I don’t think any of this had anything to do with me, or frankly the 42,000 petition signatures. The only thing I did was provide housing and transportation to David House, because he’s just out of college and Glenn Greenwald told him he could stay with me when he comes to visit Manning.

Everyone but David has stopped coming to see Bradley, and it takes a lot of courage to do what David is doing. It’s a very intimidating situation. So I try to support him by giving him a place to stay and driving him to the base when he comes to town. That’s really my only involvement.

There is no doubt in my mind that the primary objective of everything that happened today was to keep Bradley Manning from having the company of his only remaining visitor. The MPs told us they were ordered to do this, the brass showed up to make sure that they did, and they held us until 2:50 by repeatedly asking for information they already had whenever we asked to leave.

Visiting hours at the brig end at 3pm, and don’t begin again until the next weekend. It’s a half hour walk from the front gate to the brig, and although they have allowed David to walk before, they wouldn’t let him do it this time. They said he’d have to catch a cab and come back on the base, but they wouldn’t release him to do that until 2:50.

This was all about detaining David, not me. I would not be surprised to learn they were also punishing him for speaking out about Manning’s conditions. The State Department, the FBI and just about every three-letter government agency has been investigating David and the other Boston hackers since they began organizing support for Bradley Manning last summer, with one witch hunt after another attempting to implicate them in one of Adrian Lamo’s fabulist tales of a physical disk hand-off from Manning to Wikileaks.  The New York Times keeps printing that one, over and over again, with the Justice Department whispering in their ear and nothing but the word of the inconsistent Lamo for evidence.

David has been detained at the airport, his computer seized and held for months with no explanation. The McCarthy-esque actions of the security agencies has terrified all of these idealistic young people.  It is exceptionally admirable that David and others persist in supporting Bradley Manning despite it all.

The net effect of the MP’s actions today was to escalate the climate of threats and intimidation around David, a 23 year-old who just graduated from college, and cut Manning off from any personal contact with the one person who is still showing up to visit him after the government consciously scared everyone else off.

I am very happy that I went, and could be there to support David, because one of the first things the MPs said to us when we arrived — long before they asked for driver’s license, social security numbers,  registration, phone numbers, quizzed us about the addresses on our licenses, etc, etc, was that they had orders to do all of this. Which means they were planning to detain us long before we got there. They were going to use any excuse to keep David from visiting Manning, and try to intimidate him from coming back.

Rachel Slajda at Talking Points Memo:

A spokesman for the base told the AP that the two were never detained. He said Hamsher’s car was towed after she failed to show proof of insurance, and after MPs determined her car’s license plates were expired.

Manning, who is 23, has been charged with eight crimes related to illegally leaking classified information. Manning is accused of leaking 250,000 diplomatic cables, tens of thousands of military dispatches from the war in Afghanistan and a video that shows U.S. forces opening fire on civilians in Iraq, including two Reuters journalists.

Kevin Drum:

This doesn’t appear to be a shining moment for either our government or our military forces.

Jazz Shaw:

Here’s a free tip for those who are obviously not terribly familiar with the military. You don’t give the military a courtesy call to tell them you are coming. You ask their permission. It’s a military base, not a theme park. And when you tell them in advance that you’re coming to their turf to pull off a media stunt intended to make them look bad and challenge their authority, they’re going to mess with you. Further, even if one of you is on the approved visitor list, (Hamsher is not) when you arrive at a United States Military facility, you are there as their guest. They may choose to suffer your presence, but from the moment you pass through those gates you’re playing by their rules.

Perhaps even more amazing than the other complaints and accusations was this puzzling, cryptic statement.

Nobody knows why Marines are holding Bradley Manning who is in the Army anyway. Manning attorney unable to get an answer.

If there’s any truth to that, Manning needs to fire his attorney. The Marines handle security duty at numerous military facilities around the world, including the brigs on larger Navy ships. Quantico’s brig, which is staffed by both Marine and Navy personnel, is famous as a secure destination for suspects and convicts in transition, particularly in high profile cases. It has housed a variety of notorious figures ranging from wannabe presidential assassin John Hinkley to convicted traitor and spy Clayton J. Lonetree. There is absolutely nothing unusual about a suspect like Manning winding up there.

In the end, this stunt was just the next phase in Hamsher’s relentless campaign to lionize both Bradley Manning and Julian Assange as some sort of heroes. It’s an effort which has been regularly abetted by Glenn Greenwald, who jumped into the brewing Twitter storm almost immediately. At one point I asked him if he thought Manning might actually be guilty of releasing all those documents and if that made him some sort of hero in Glenn’s eyes. His response was refreshingly honest.

I have no idea – we wait until what’s called a “verdict” before imposing punishment on people. And yeah, I think it’s heroic.

I’m sure we’re all anxious to find out where this story goes next. Will more visitors take on the U.S. Marines? Will Private Manning have his cable TV access reduced to even more barbaric levels less than six hours per day? Will Jane get her car back and find her insurance card? Tune in next time on, As the World of Manning Turns.

Glenn Greenwald:

The claim is that Hamsher has only electronic rather than printed proof of car insurance — the same proof she’s had every other time she brought House there, though without a petition — and they have thus impounded her car.  They also, though, are refusing — without any explanation — to let House visit Manning despite his being on the approved visitor list.  So much for Manning’s once-a-week reprieve from solitary confinement.

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Filed under Crime, New Media, Torture

TPM Cafe: Serving Up More Than Just Anonymous Bloggers

Rachel Slajda at Talking Points Memo:

Rep. Russ Carnahan (D-MO) confirmed in a press conference yesterday that a man identified as a suspect in an alleged arson at Carnahan’s campaign office is a former paid campaign worker.

The man, Chris Powers, was arrested but has not been charged in the arson case. In a phone interview this morning with TPMmuckraker, Powers denied having any involvement with what local reports have described as a “fire bombing.”

“I’m innocent,” Powers said. “I was at home when Congressman Carnahan’s office was fire bombed. I have nothing to do with it.”

In the early morning hours of Aug. 17, someone broke a back window in Carnahan’s St. Louis campaign office and set a small fire, which caused minor damage in the office. Police arrested a suspect some hours later. They released him the next day, but have not divulged the suspect’s name. Police say it is up to the prosecutor’s office whether to issue a warrant; without it they can’t hold a suspect or release his name.

Powers’ identity was first reported yesterday by the St. Louis blog Gateway Pundit. After the claim gathered steam online, Carnahan held a press conference and confirmed that Powers is a former campaign worker. Carnahan said Powers was paid as a canvassing worker for about a week, but was fired for “not doing his job.”

When TPM asked Powers if he was the person initially arrested by police, Powers referred us to his lawyer, who was not immediately available for comment.

As several blogs have reported, Powers wrote a reader blog at TPMCafe under the name Ripper McCord. (Any TPM reader can create a reader blog and comment on the site, and Powers is not affiliated with TPM.)

Jim Hoft at Gateway Pundit:

Far Left website TPM Muckraker took the offical walk of shame today and admitted that one of their unhinged bloggers was arrested for firebombing Congressman Russ Carnahan’s office. The suspected firebomber blogs at TPM under the name “Ripper McCord.” When Leftie Bloggers Attack…

Moe Lane at Redstate:

Today, Talking Points Memo finally released an article on the affair, in which it reported both that Powers denied any involvement in the original attack, as well as implicitly denying any relationship between TPM and Powers beyond the latter’s ability to post diaries at TPM:

As several blogs have reported, Powers wrote a reader blog at TPMCafe under the name Ripper McCord. (Any TPM reader can create a blog and comment on the site, and Powers is not affiliated with TPM.)

No explanation was offered as to why TPM declined to cover for almost a week the firebombing of a Democratic Congressman’s campaign office; a firebombing which featured at one point a TPM diarist as prime suspect.

No further arrests have been made in the case as of the time of this article.

Ed Morrissey:

This development makes for yet another don’t-jump-to-conclusions morality tale, but perhaps more people should take heed of it.  Certainly the crowd who rushed to blame Tea Party activists and Republicans for the attack have some apologies to make, just as they did when the Left assumed that conservatives murdered a man who was later determined to commit suicide.

On the other hand, though, being a suspect does not mean being guilty.  I’ve received a lot of e-mail from readers declaring that this demonstrates the violence inherent in the Left system, and so on.  So far, the police haven’t even charged Powers.  If they do, they’ll have to prove their case in court.  I’d remind people that the police thought they had their man in the Atlanta Olympics bombing when they accused the one guy who took action to save lives with planting the bomb in the first place — only to find out that the real bomber was serial terrorist Eric Rudolph.  Richard Jewell had to fight for years to get his reputation back before passing away in 2007.

The fact that the suspect list, at least the acknowledged suspect list, includes a disgruntled worker should be reason enough to scold those who leaped to conclusions in the first place, but let’s not do the same thing now.   There may well be other suspects in the case of whom we are unaware.  Until the police actually file charges and publish their evidence, maybe everyone should just hold their powder and see how the situation develops first.

James Joyner:

So . . . we have some guy who was hired at the very lowest level of a campaign, got fired for “not doing his job” and is “disgruntled.”    And he also was a glorified commenter at TPM.  Not exactly the stuff of scandal or “walks of shame” here.

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Filed under Crime, New Media

Gates Breaks Out The Scissors

Frank James at NPR:

Defense Secretary Robert Gates has made reducing and redirecting the Pentagon’s huge budget a priority.

On Monday, he pushed forward his initiative on that front. Included among the ideas he laid out is a recommendation to eliminate one of the military’s nine commands, the Joint Forces Command which is called Jiffycom by some. That command employs employs about 5,000 people, both uniformed military and private sector.

As NPR’s Tom Bowman reported for the network’s radio newscast.

TOM: What Gates wants to cut is called the Joint Forces Command, based in Norfolk, Va., that employs 3,000 private contractors.

The command was created a decade ago to get the military services to work more closely together, but Gates says that’s now largely been achieved.

Gates also wants to reduce the Pentagon’s dependency on those outside contractors.

GATES: To accelerate this process and achieve additional savings, I have directed that we  reduce funding for service supported contractors by 10 percent per year for each of the next three years.

Gates told reporters that 200 Pentagon contractors work full-time just writing reports ordered by Congress.

Any money saved in these cutbacks, says Gates, will be used to help modernize the military.

The American Forces Press Service has a fairly comprehensive report on the briefing Gates gave reporters Monday. It contained this background on why the cuts are needed:

Money saved with these efficiencies will go back into funding needed military capabilities. “To be clear, the task before us is not to reduce the department’s top-line budget,” Gates said. “Rather, it is to significantly reduce its excess overhead costs and apply the savings to force structure and modernization.”

President Barack Obama has programmed in real growth of between 1 and 2 percent into future years’ defense budgets, but that is not enough to maintain today’s warfighting capabilities and modernize, which requires roughly 2 to 3 percent real growth. The savings in overhead are crucial to making up that difference, Gates said.

Gates continues to target political sacred cows for extinction, both weapons programs and bases that are so spread out across the county as to impact many congressional districts. He realizes he doesn’t have the political wind at his back on this one, just the opposite.

Sandra Erwin at National Defense Magazine:

Winners: Troops in uniform, ship programs, weapons systems that are needed to fight current and future wars.
Losers: Bloated defense and intelligence agencies, redundant bureaucracies, four-star generals and admirals guilty of “brass creep,” report writers, white-collar contractors.

That pretty much sums up the casualty report from the efficiency-campaign bombshells dropped today by Defense Secretary Robert Gates. He is looking for $100 billion in savings from cuts in overhead costs over the next five years.

The Pentagon needs the savings to “sustain a military at war and prepare for future threats,” Gates said. There are no plans yet to cut the defense budget top line, but these measures are necessary for the Defense Department to preserve its current force structure and fund modernization programs within the flat budgets projected for the foreseeable future, he said.

“I concluded that our headquarters and support bureaucracies — military and civilian alike — have swelled to cumbersome and top-heavy proportions, grown over reliant on contractors, and grown accustomed to operating with little consideration to cost,” Gates said at a news conference. His office alone has added 1,000 employees during the past decade, with little evidence that the expansion has added any real value, Gates said.

The bureaucratic ballooning and the excessive hiring of white-collar contractors must end, said Gates.

Josh Rogin at Foreign Policy:

In Washington, you know a decision is controversial when the pushback comes before the announcement. Such is the case with Defense Secretary Robert Gates‘s Monday bombshell that he wants to close Joint Forces Command.

The AP broke the news this morning that Gates would announce at a press conference his idea to shutter JFCOM’s gigantic base in southern Virginia as part of his drive to cut $100 billion from the Pentagon budget. He also announced a 10 percent cutback in the Defense Department’s use of contractors each year for the next three years and pledged to cut the size of his own staff and that of the larger Pentagon bureaucracy.

Today, Gates also directed the elimination of DOD’s Business Transformation Agency and the office of the assistant secretary of defense for networks and information integration (NII). He said the moves were part of his two-year effort to reform the Defense Department and pledged more announcements in the coming months.

“The culture of endless money that has taken hold must be replaced by a culture of savings and restraint,” Gates said. “This agenda is not about butting the department’s budget. It’s about reforming and reshaping priorities to ensure that in tough budgetary and economic times, we can focus defense resources where they belong.”

But even before Gates spoke, a team of Virginia lawmakers sent out an advisory that they will hold “an urgent press conference” on the announcement Monday at 4 p.m. at Old Dominion University in Norfolk, near where the base is located. Reps. Glenn Nye, J. Randy Forces, Bobby Scott, and Rob Wittman were all scheduled to speak.

“The proposal by the Defense Department to close JFCOM is short-sighted and without merit,” Nye said following Gates’s announcement. “I appreciate the department’s attempt to rein in spending, but I have yet to see any substantive analysis to support the assertion that closing JFCOM will yield large savings.”

Virginia Sen. Mark Warner released a statement Monday protesting the announcement before it was made.

“I can see no rational basis for dismantling JFCOM since its sole mission is to look for efficiencies and greater cost-savings by forcing more cooperation among sometimes competing military services,” Warner said. “In the business world, you sometimes have to spend money in order to save money.”

Gates said he would work with JFCOM employees to ease their transition as the base closes and speculated that Virginia could benefit if the savings are reinvested in other local military efforts, such as shipbuilding.

Rachel Slajda at Talking Points Memo

Karaka Pend at Spencer Ackerman’s place:

I have to say, I admire Gates for taking the hardline on this budget, whether it’s pulling back on Navy war machines or getting the President to back a veto on an extra jet engine. Today’s announcement shows he’s serious about backing off the hose of spending attributed to the Department of Defense, an act that is doubly hard as we’re finishing up one conflict and continuing on with another. Besides which, the first place you’d look at to offset the deficit would be the defense budget, and this is the administration taking a proactive stance towards that budget.

Still, this will make some people pretty unhappy. JFCOM is tasked with co-ordinating the various branches of the military in training, future mission development, and organizational structure, and while those roles can be folded into other entities, it will take some time to transition. Furthermore, reducing contractor support by 10% annually for the next four years is no small potato either. But if anyone can push this through, it’s Gates.

Lewis MD at Spencer Ackerman’s place:

Defense and security take up approximately a fifth of the federal budget. Twenty cents out of every dollar that you send to the government goes towards that slice of the pie. The nominal cost is somewhere north of $700bn per year. With the large budget deficits in our future, defense deserves a large amount of scrutiny.

Gates and the White House seem to realize this. Congress, however, doesn’t seem to share the appetite for budget cuts. This has led to some fierce battles over specific programs. The problem is that there are defense industries in every state and congressional district in the country. No congressman wants to give up the jobs that come with, for example, a second engine for the F-35, even if the Pentagon doesn’t even want it.

Congress will likely fight these budget cuts tooth-and-nail, but if we’re going to get deficits under control, the DoD can NOT be exempted from the pain. Off the top of my head, other programs that probably should fear the budget axe include the Marines’ V-22 Osprey and F-35B (with STOVL capability), the navy in general, and contractors.

Paul Krugman’s column today focused on the pain being felt in communities as essential services are cut back. His column talked mostly about the tax cuts that are set to expire this year. But don’t we need more and better teachers more than a special version of the F-35 that the Marine Corps admits it doesn’t really need? Wouldn’t we rather invest in our crumbling infrastructure than build another aircraft carrier when we already have an order of magnitude more carrier battle groups than any other nation? We spend as much on defense as the rest of the world combined. We can still have a conventional military that dwarfs any other nation, while making tough choices to weed out bad or only marginally useful programs. Our communities could really use the money.

John Guardiano at FrumForum:

I honestly don’t know whether the Pentagon’s decision yesterday to eliminate Joint Forces Command (JFCOM) is wise or ill-advised. That’s a programmatic and bureaucratic decision that, candidly, I lack the expertise right now to make.

But what I do know is this: In the absence of budgetary pressure from the White House, the Pentagon most likely would not be seeking now to close down JFCOM while reducing its spending by some $100 billion over the next five years.

I also know that since Obama was elected president, the only government agency asked to make significant budget cuts has been the Department of Defense; and this is wrong. It is wrong because it is unfair, unreasonable and dangerous.

It is unfair because the U.S. military is really the only governmental entity that is being forced to scale back. Domestic social-welfare spending, by contrast, has skyrocketed. Yet where’s the hue and cry? It doesn’t exist.

But you can be sure that if it were the Department of Education or the Environmental Protection Agency that were being forced to make cuts, the bureaucracies there would be vociferously protesting — and ditto their allied outside liberal lobby groups.

The U.S. military, of course, can’t protest and it doesn’t protest. This because of the principle of civilian control of the military. Military officials instead simply salute and say, “Yes, Sir.”

Meanwhile, the defense contractors and parochial elected officials make ill-conceived and unpersuasive appeals based on “jobs” and pork-barrel spending.

I say ill-conceived because defense spending should be explained and justified as a matter of military necessity, not as a “jobs program” for congressional constituents. And I say unpersuasive because everyone knows that these pork-barrel spending appeals are politically self-serving and economically dubious.

To be sure, there is an economic case to be made for defense spending. I’ve made that case myself here at FrumForum, and it is this: Just as defense spending helped to lift America out of a prolonged depression in the 1930s, so too, can defense spending help to lift America out of its current economic malaise.

But defense spending can be economically beneficial only if it plays to the central strength of America’s economy in the 21st Century. And that strength involves our ability to harness computer processing power and other information technologies to create new and unprecedented opportunities for individuals, even individual soldiers.

The politicians, however, don’t get this. Their defense spending schemes aren’t aimed at creating new 21st Century economic opportunities. They’re aimed instead at preserving old and ossified 20th Century “jobs programs.” Their efforts aren’t part and parcel of any overarching national defense strategy; they’re the economically wasteful byproduct of domestic political indulgence. And that is why they ultimately fail, both politically and economically.

In any case, it is extremely unfair to force the Department of Defense alone to bear the burden of Washington’s phony newfound fiscal rectitude.

Fred Kaplan at Slate:

Gates is canny to play off one set of interests against another (drop the Joint Forces Command, pick up another ship; give up a dozen generals, win a few more of those armored vehicles you’ve been eyeing). Maybe it will work. But by notching up his victories in this manner, he forgoes a path that would have yielded much greater savings.

The big money and the real savings lie precisely in the “force structure” and “force modernization” that Gates is aiming—and genuinely wants—to protect. In the question-and-answer period, he said that about half of the weapons-procurement budget goes for modernization—that is, for building new weapons, most of which have little or nothing to do with the wars we’re fighting in Iraq and Afghanistan. Since the current budget ($549 billion, not counting the costs of our two wars) contains $137.5 billion for procurement, that amounts to roughly $70 billion.

Gates wants the Pentagon and the military branches to conduct a “clean-sheet review” and to “start setting priorities, making real tradeoffs, and separating appetites from real requirements” when it comes to things like contractors, headquarters, overhead, and so forth. And that’s all to the good. But he’s not launching any similar campaign when it comes to deployments and weapons systems. (In fairness, last year, he did cut about 20 weapons programs, including the F-22—more than any defense secretary in 40 years. But budget officials estimate that the bag of goodies is still bursting way beyond our ability to pay for them.)

The steps Gates took today have far-reaching implications; I don’t mean to minimize them. But there are other issues and questions that tap more deeply into the foundations of what he himself calls our “cumbersome and top-heavy” military, which has “grown accustomed to operating with little consideration to cost.”

For instance: How many submarines and aircraft carriers does the Navy really need? And do all those carriers need the same number of aircraft and escort ships? How many fighter planes does the Air Force really need? How many brigades does the Army really need?

Gates’ new reforms are based on two premises: First, that the nation can’t afford unceasing growth in the defense budget; second, that the nation can afford moderate growth in the defense budget, as long as the Pentagon shows good faith by slashing what any objective observer would label “waste.”

The first premise is unassailable, the second probably too optimistic. The fact is, we can’t afford growth in the defense budget, period. To get the cuts he’s after, Gates—as a matter of political realism—has to leave the rest of the budget alone. But at some point, some secretary of defense is going to have to open it all up to scrutiny.

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Filed under Economics, Military Issues

The Two Propositions Of The Day: Proposition 8

Andrew Sullivan with the ruling

Marc Ambinder:

Here’s what you need to know about Judge Vaughn Walker’s decision invalidating California’s Proposition 8, a referendum, passed by voters, that banned same-sex marriage. The decision itself will be appealed, and Walker’s reasoning could serve as the basis for argument at the appellate level — or, the appeals court could decide to argue the case a completely different way.

What matters are the facts that Walker finds. Why? As Chris Geidner notes, “[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker’s findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.”

Walker, in his decision, writes that “Proposition 8 fails to advance any rational basis in singling out gays and lesbians for denial of a marriage license.”  He evaluates as credible witnesses the panel of experts who testified against Proposition 8, and finds fault with the credentials of several witnesses who testified against same-sex marriage, including David Blankenhorn, President of the Institute for American Values.

“Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight,” Walker writes. “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.”

Jacob Sullum at Reason:

The arguments for banning gay marriage are so weak, Walker said, that they fail even the highly deferential “rational basis” test, which applies in equal protection cases that do not involve a “suspect classification” such as race. “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite sex couples.”

The decision is bound to be appealed and may ultimately reach the Supreme Court. The text of Walker’s opinion is available here. The Los Angeles Times has excerpts here. I discussed the equal protection argument for federal recognition of state-approved gay marriages here and here. More to come.

Rachel Slajda at Talking Points Memo:

In his findings of fact, Walker pointed out that California “has never required that individuals entering a marriage be willing or able to procreate.”

He also notes that slaves were unable to marry.

“The states have always required the parties to give their free consent to a marriage. Because slaves were considered property of others at the time, they lacked the legal capacity to consent and were thus unable to marry. After emancipation, former slaves viewed their ability to marry as one of the most important new rights they had gained,” he wrote.

Walker also noted that past marriage inequalities have included the prohibition of interracial marriage and coverture, in which a woman’s identity is subsumed by her husband’s.

Chris Rovzar at New York Magazine

The Brad Blog:

Great news for real conservatives who believe in the U.S. Constitution and its guarantee of equal protection under the law! A U.S. District Court Judge, first nominated by Ronald Reagan and then appointed under George H.W. Bush, has struck down CA’s Prop 8 which added an amendment to the state constitution banning same-sex marriage equality. The state’s majority Republican-appointed Supreme Court had previously found no basis for banning same-sex marriage in the CA constitution. That finding was, in effect, overturned at the ballot box in November 2008 by Prop 8 which ended same-sex marriage in the state and left thousands of marriages in limbo until today’s finding.

Jim Newell at Gawker:

CNN is going to gay bars in San Francisco on TV right now, for reactions. (Update: No one was in the gay bars so they stopped. Lame empty gay bars!)

You can read the full decision here. The judge found it unconstitutional under both the due process and equal protection clauses. The ruling is expected to be appealed and could end up at the Supreme Court.

Steve Benen:

The full ruling from Judge Walker, an appointee of President H.W. Bush, is online here.

Note, the case will now go to the 9th Circuit Court of Appeals, which tends to be pretty progressive. Many legal experts I’ve spoken to expect the Supreme Court to eventually hear the case.

In the meantime, the decision is heartening. The arc of history is long, but it continues to bend towards justice.

Jesse Zwick at The Washington Independent:

Looking ahead, it will be interesting to see what kind of role the issue of same-sex marriage, so incendiary in California in 2008, will play in the midterm elections in the state this November. The Courage Campaign, a progressive online organizing network based in California and formed partly in response to the passage of Prop 8, has been busy pointing out the role of the National Organization of Marriage (NOM), the main nonprofit behind the passage of Prop 8, in backing California candidates like GOP senate hopeful Carly Fiorina.

“In NOM, Carly Fiorina has aligned herself with a fringe group that relies on lies and fear to advocate discrimination and second-class citizenship for millions of loving American families,” Courage Campaign Chairman and Founder Rick Jacobs said in a press release. “Bigotry is not a family value and it has no place in the United States Senate.”

The National Organization of Marriage, already under fire for failing to disclose its donors to state election officials in Iowa and Maine, has now joined up with the Latino Partnership for Conservative Principles, an initiative of American Principles in Action, and the Susan B. Anthony List, a pro-life women’s network, to back Fiorina through the “Tus Valories” (Your Values) Campaign, an independent expenditure on the part of American Principles in Action.

bmaz at Firedoglake:

The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.

Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.

UPDATE: Dahlia Lithwick at Slate

Orin Kerr

Ilya Shapiro at Cato

Tom Maguire

William Duncan at NRO

Eugene Volokh

UPDATE #2: James Taranto at WSJ

Scott Lemieux

Dan McLaughlin at Redstate

Jim Antle in The American Spectator

UPDATE #3: David Frum at CNN

Steve Chapman at Reason

UPDATE #4: Legal Insurrection

Allah Pundit

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Not Every Explosive Tape Contains Mel Gibson Melting Down

Andrew Breitbart at Big Government:

We are in possession of a video from in which Shirley Sherrod, USDA Georgia Director of Rural Development, speaks at the NAACP Freedom Fund dinner in Georgia. In her meandering speech to what appears to be an all-black audience, this federally appointed executive bureaucrat lays out in stark detail, that her federal duties are managed through the prism of race and class distinctions.

In the first video, Sherrod describes how she racially discriminates against a white farmer. She describes how she is torn over how much she will choose to help him. And, she admits that she doesn’t do everything she can for him, because he is white. Eventually, her basic humanity informs that this white man is poor and needs help. But she decides that he should get help from “one of his own kind”. She refers him to a white lawyer.

Sherrod’s racist tale is received by the NAACP audience with nodding approval and murmurs of recognition and agreement. Hardly the behavior of the group now holding itself up as the supreme judge of another groups’ racial tolerance.

Ed Morrissey:

Actually, if Sherrod had a different ending for this story, it could have been a good tale of redemption. She almost grasps this by initially noting that poverty is the real issue, which should be the moral of the anecdote. Instead of having acted on this realization — and perhaps mindful of the audience — Sherrod then backtracks and says that it’s really an issue of race after all. It certainly was for Sherrod, who admits that “I didn’t give him the full force of what I could do.” Notice that the audience doesn’t exactly rise as one to scold Sherrod for her racism, but instead murmurs approvingly of using race to determine outcomes for government programs, which is of course the point that Andrew wanted to make.

Andrew has a second video, which is more relevant to the out-of-control expansion of the federal government than race. Sherrod in the same speech beseeches her audience to get work in the USDA and the federal government in general, because “when was the last time you heard about layoffs” for government workers? If Sherrod is any example, it’s been too long.

Doug Powers at Michelle Malkin’s:

We interrupt this “Tea Partiers are so incredibly racially biased” broadcast for the following update:

Days after the NAACP clashed with Tea Party members over allegations of racism, a video has surfaced showing an Agriculture Department official regaling an NAACP audience with a story about how she withheld help to a white farmer facing bankruptcy — video that now has forced the official to resign.

The video posted at BigGovernment that started it all is here if you haven’t seen/heard it yet.

Breitbart claims more video is on the way.

We now return you to your regularly scheduled “Tea Partiers are so incredibly racially biased” broadcast.

Tommy Christopher at Mediaite:

As it’s being presented, the clip is utterly indefensible, and the NAACP was quick to denounce Sherrod:

We are appalled by her actions, just as we are with abuses of power against farmers of color and female farmers.

Her actions were shameful. While she went on to explain in the story that she ultimately realized her mistake, as well as the common predicament of working people of all races, she gave no indication she had attempted to right the wrong she had done to this man.

The clip that’s being promoted is obviously cut from a larger context, and while this is often the dishonest refuge of radio shock jocks, in this case, it makes a real difference. Here’s what Sherrod told the Atlanta Journal-Constitution:

But Tuesday morning, Sherrod said what online viewers weren’t told in reports posted throughout the day Monday was that the tale she told at the banquet happened 24 years ago — before she got the USDA job — when she worked with the Georgia field office for the Federation of Southern Cooperative/Land Assistance Fund.

Sherrod said the short video clip excluded the breadth of the story about how she eventually worked with the man over a two-year period to help ward off foreclosure of his farm, and how she eventually became friends with him and his wife.

“And I went on to work with many more white farmers,” she said. “The story helped me realize that race is not the issue, it’s about the people who have and the people who don’t. When I speak to groups, I try to speak about getting beyond the issue of race.”

Sherrod said the farmer, Roger Spooner of Iron City, Ga., has since died.

It doesn’t seem that Ben Jealous or Agriculture Secretary Tom Vilsack are aware that Sherrod wasn’t working at USDA when this occurred, or that she did, in fact, help the farmer in question. That changes everything about this story, including the reaction of the crowd. The entire point of the story is that her actions were indefensible.

If what Sherrod says is true, this is not a story about grudgingly admitting that even white folks need help, but rather, a powerful, redemptive cautionary tale against discrimination of any kind. Both the AJC and Mediaite are working to locate a full video or transcript of the event.

This incident is being posed as the right’s answer to the NAACP resolution against “racist elements” in the Tea Party. This story also comes at a time when the New Black Panther Party has been thrust into the spotlight by Fox News (with predictable results), and debate rages over an Arizona immigration law that many say encourages racial profiling.

This is precisely the danger of ideologically-driven “journalism.” It is one thing to have a point of view that informs your analysis of facts, but quite abother when that point of view causes you to alter them.

David Kurtz at Talking Points Memo:

The 82-year-old wife of the white Georgia farmer who was supposedly discriminated against some quarter century ago by the black USDA official forced to resign this week — if the video released by Andrew Breitbart’s Big Government and re-run by Fox is to be believed — is now confirming that in fact Shirley Sherrod saved her and her husband’s farm from bankruptcy and is a “friend for life.”

CNN also spoke with the farmer’s wife and with Sherrod. Rachel Slajda has more.

Kevin Drum:

In a second video, BigGovernment.com says “Ms. Sherrod confirms every Tea Partier’s worst nightmare.” Although this is ostensibly a reference to a joke she made about no one ever getting fired from a government job, that’s not really every tea partier’s worst nightmare, is it? On the other hand, a vindictive black government bureaucrat deciding to screw you over because you’re white? Yeah, I’d say that qualifies.

This is just appallingly ugly, and the White House’s cowardly response is pretty ugly too. This is shaping up to be a long, gruesome summer, boys and girls.

Atrios:

One of the under reported stories of the 90s was just how much Starr’s merry band of lawyers totally fucked over relatively lowly White House staffers in the Great Clinton Cock Hunt. That was largely through subpoenas and lawyer bills, but lacking subpoena power the Right has now turned to a credulous news media and the power of selectively edited video to go after random government officials.

Apparently Glenn Beck and Andrew Breitbart rule Tom Vilsack’s world. Heckuva job.

Charles Johnson at Little Green Footballs:

Andrew Breitbart: the heir to Joseph McCarthy, destroying people’s reputations and jobs based on deliberately distorted allegations, while the rest of the right wing blogs cheer. Disgusting. This is what has become of the right wing blogosphere — it’s now a debased tool that serves only to circulate partisan conspiracy theories and hit pieces.

UPDATE at 7/20/10 8:33:55 am:

Note that LGF reader “teh mantis” posted a comment last night at around 6:00 pm that made exactly these points about Breitbart’s deceptive video, in this post.

UPDATE at 7/20/10 9:00:01 am:

It’s disturbing that the USDA immediately caved in to cover their asses, and got Sherrod to resign without even hearing her side of the story; but also expected. That’s what government bureaucrats do. And they didn’t want the USDA to become the next ACORN.

But it’s even more disturbing that the NAACP also immediately caved in and denounced this woman, in a misguided attempt to be “fair.” The NAACP is supposed to defend people like this. They were played by a con man, and an innocent person paid the price.

UPDATE: Rachel Slajda at TPM

The Anchoress at First Things

Caleb Howe at Redstate

Digby

Tom Blumer at The Washington Examiner

David Frum at The Week

Erick Erickson at Redstate

Jonah Goldberg at The Corner

Ta-Nehisi Coates

Jamelle Bouie at The American Prospect

UPDATE #2: Dan Riehl at Human Events

Noah Millman at The American Scene

Scott Johnson at Powerline

Victorino Manus at The Weekly Standard

Andy Barr at Politico

UPDATE #3: More Johnson at Powerline

Jonathan Chait at TNR

Bill Scher and Conor Friedersdorf at Bloggingheads

UPDATE #4: Eric Alterman at The Nation

Ta-Nehisi Coates

Legal Insurrection

Ed Morrissey

UPDATE #5: Ben Dimiero and Eric Hananoki at Media Matters

UPDATE #6: Bridget Johnson at The Hill

UPDATE #7: Kate Pickert at Swampland at Time

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Filed under Political Figures, Politics, Race

And Now The Left Picks Up That Old Tenth Amendment

Rachel Slajda at TPM:

A federal judge ruled today that part of the Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

Judge Joseph Tauro, of U.S. District Court in Boston, issued rulings on two separate cases today.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote in the decision for Massachusetts v. Health and Human Services.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” he wrote.

Ed Morrissey:

The 10th Amendment application seems a little odd to me, especially in the case of Medicaid coverage.  That program uses federal funds in part to cover medical bills.  The federal government would therefore seem to have jurisdiction on how its own funds get spent, although the state should have the same latitude with its own funds.  After all, DOMA doesn’t tell states that it can’t recognize same-sex marriages, but just exempts marriage recognition from the full faith and credit clause of the Constitution so that other states don’t have to follow suit.  It also retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which also has nothing to do with the 10th Amendment.

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment.  Can they get behind this interpretation?  And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

Andrew Sullivan:

And so one of the principles held most dearly by some of the tea-partiers must logically hold DOMA unconstitutional. Much more on this tomorrow. But let me note right now the political ironies of this. The right is hoist on their own federalist petard and will now have to choose whether states’ rights or marriage inequality is more important to them. The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.

Or they could both listen to Ted Olson. This issue is neither right nor left; it is about human dignity, civil equality and civil rights. And it is way past time the American polity grappled with this, instead of exploiting it for mutual partisan purposes.

Jack Balkin:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not– and I do not– Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge– who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are–is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment– much beloved by conservatives– to strike down another law much beloved by conservatives–DOMA. There is a kind of clever, “gotcha” element to this logic. It is as if he’s saying: “You want the Tenth Amendment? I’ll give you the Tenth Amendment!” But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness– which is certain to twist both liberal and conservative commentators in knots– I do not support the logic.

The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

Dale Carpenter:

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28–35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).

Joe Sudbay at AMERICABlog:

Today, we celebrate. But, this is only the beginning of the process. We’ll have to find out if the Obama administration plans to appeal these rulings. (Note to Obama administration: Please don’t.)

UPDATE: More Balkin

Noah Millman at The American Scene here and here

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Filed under Gay Marriage, The Constitution