Appeals Court finds no right to sexual privacy

In case you were wondering . . .

Matt Conigliaro, at Abstract Appeal, reports:

An Alabama law bans the commercial distribution of devices designed or marketed primarily for human genital stimulation. Does that prohibition violate the privacy right that the U.S. Supreme Court has found inherent in the Fourteenth Amendment?

No, said the Eleventh Circuit in this decision released on February 14.

The court held no fundamental right to sexual privacy exists in the federal constitution and, applying only the low-level rational basis test, concluded that public morality was a legitimate and sufficient justification for the law's commercial-based constraints.

[Desperate Housewives to film in Alabama next season]

New Jersey court: Apply equal rights to same-sex couples

"Saying times have changed, New Jersey's highest court on Wednesday guaranteed gay couples the same rights as married heterosexuals but left it to state lawmakers to decide if such unions can be called marriage."

"The ruling leaves state lawmakers with two options -- allow gays to marry in the same way as others, or develop a parallel system of unions for same-sex couples. That second option would leave New Jersey with civil unions akin to those in Vermont." - Reuters

The court held: "Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes." - Think Progress

George Bush, October 26, 2004: "I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so." - AmericaBlog

• My comments on marriage equality here.

Today's lesson: Compare and contrast

Reprimand for US interrogator who killed general

FT. CARSON, CO--A US Army interrogator facing up to life behind bars for killing an Iraqi general by stuffing him head-first into a sleeping bag and sitting on his chest will instead escape with a reprimand, a military jury ruled early today.

Chief Warrant Officer Lewis Welshofer, who had faced up to life in prison for the death of Iraqi Major General Abed Hamed Mowhoush during an interrogation, was also ordered to forfeit £3400 salary and was restricted to his place of work, worship and barracks for 60 days.

Six-month prison sentence for US war protestor

BINGHAMTON, N.Y. (AP) — A peace activist was sentenced Monday to six months in jail for splattering his own blood at a military recruiting station to protest the then-looming war in Iraq.

Daniel Burns was the first of four activists to be sentenced this week for splattering their blood on the windows, walls, pictures and an American flag at the army and marine corps recruiting station on March 17, 2003.

Crime and punishment: Say what?

We can say these punishments are unfair and inequitable. But there really is no logical comparison that can be made between the crimes that could explain -- in any rational way -- why the second crime merits imprisonment, and the first does not.

Judge Bobblehead to be confirmed

First impressions are sometimes correct

These are words I wrote to a family member following the nomination of Samuel Alito to the Supreme Court:

November 2, 2005--I was reading more on Alito last night and this morning. Comments like this one in the LA Times piece, "He is an honest conservative judge who believes in judicial restraint and judicial deference," don't give much indication of how he will perform.

I get the feeling that once Alito has achieved his ultimate career goal, a seat on the Supreme Court (per his undergraduate yearbook), his ideological side may prevail. If his ideology, political agenda or legal philosophy led him, while on a lower court, to become the lone dissenting vote to numerous decisions, what can we expect when that single vote, added to four like-minded justices on the nation's highest court, could roll back rulings that we assumed had become settled law?

As for his supporters saying he's a "nice guy," that in itself doesn't mean much if Alito has an agenda. Associates of Pat Buchanan, even some gays who know him, say Pat is a great guy on a personal level -- yet he would deny rights to many of his fellow citizens. We have heard people say that George Bush "doesn't have a prejudiced bone in his body" --yet he uses anti-gay rhetoric and support for anti-gay laws to win elections. We've all known "nice guys" who have no comprehension of their own prejudices or lack of compassion for others.

I hope that my gut reaction is wrong. Either way, Alito will likely be confirmed. If we want moderate judges, we'll have to win more elections.

As for the "opposition" party . . . .

• Just fire the Democrats, please. All of them.

Something wicked this way comes

Bush's authoritarian presidency is America's greatest threat

"By the pricking of my thumbs, something wicked this way comes." - Macbeth, by William Shakespeare, Scene IV, Act i.

With the world's most powerful military at his command, George W. Bush approved policies three years ago that enpowered and encouraged members of the U. S. military to spy on American citizens -- people like you and me:

Under the programs, civilians and military personnel at defense installations are encouraged to file reports if they believe they have come across people or information that could be part of a terrorist plot or threat, either at home or abroad. The Talon reports are fed into a database managed by the Counterintelligence Field Activity, or CIFA, a three-year-old Pentagon agency whose budget and size are classified.

[....]

The Talon reports -- the number is classified, officials said -- can consist of "raw information" that "may or may not be related to an actual threat, and its very nature may be fragmented and incomplete," according to a 2003 memo signed by then-Deputy Defense Secretary Paul D. Wolfowitz.

Now that the programs have been exposed, the Pentagon is promising to 'review' its massive and poorly managed database on U. S. citizens:

"On the surface, it looks like things in the database that were determined not to be viable threats were never deleted but should have been," [a senior defense department official] said. "You can also make the argument that these things should never have been put in the database in the first place until they were confirmed as threats."

Who will determine which supposed threats are confirmed and how reports will be handled in the future? Why, the same folks who created the illegal programs in the first place -- the same Bush-Cheney-Rumsfeld Pentagon that cannot account for billions of missing dollars in Iraq; the same leadership that gave us Abu Ghraib, Guantanamo, and "happy Iraqi" news via Pentagon propaganda purchased with funds that should have been spent on body armor for soldiers.

Isn't a Rumsfeld-led Pentagon review of its own activities rather like Duke Cunningham investigating bribery, Karl Rove investigating dirty tricks, Bill Frist investigating the SEC or Tom DeLay investigating political sleaze? Not to mention all the administration's deceitful "reviews" of WMD stockpiles in Iraq, the imaginary links between Al-Qaeda and Saddam Hussein, and the "slam dunk" distortion of intelligence that led us into the Iraq invasion.


Further demonstrating his administration's contempt for the U. S. Constitution, the president also admitted this week that, under the guise of protecting the country from terrorist threats, he had secretly authorized the National Security Agency to bypass or ignore -- whenever some nameless administration official or NSA spy deemed it expedient -- the Foreign Intelligence Surveillance Court and to eavesdrop on U. S. citizens:

Previously, surveillance on American soil was generally limited to foreign embassies.

American law usually requires a secret court, known as a Foreign Intelligence Surveillance Court, to give permission before intelligence officers can conduct surveillance on US soil.

Some people, mainly diehard Bush supporters, may be unconcerned that their own personal mail, telephone conversations, internet emails, blog comments and web surfing history -- even their computer hard drives -- may be monitored by Big Brother. They trust the Bush administration to use its assumed powers properly, although Mr. Bush himself refuses to tell us the rules to the spy game he is playing upon his own people. They trust an administration that remains cloaked in secrecy, that outs a CIA operative to advance its own agenda, that buys and distributes propaganda with our tax dollars.

So, before shrugging off the authoritarian practices that unleashed America's most powerful spy agency upon us, we should take a closer look at the National Security Agency's tremendous size and powers:

A few miles out of Washington, on Route 1 to Baltimore, lies an inconspicuous military installation called Fort Meade. You would not notice it unless you knew what to look for. In fact, on most road maps, Fort Meade does not exist. And yet it contains the largest mass of secrets in the world.

Though invisible on the map, 38,000 people work at the agency every day, more than the CIA and FBI put together - every one of them sworn to a lifetime of secrecy. They have their own police force, shopping malls and sports complexes - and their own television network, complete with newsreaders.

According to author James Bamford, who has studied the NSA for years, each one of their dozen largest listening posts around the world picks up more than two million communications an hour - cell phones, diplomatic traffic, emails, faxes. That works out at 500 million hours every day.

Feel safer?

I don't. Not with a sociopathic president who sports a track record of creating his own reality, twisting intelligence, ignoring human rights and operating in secrecy at every opportunity. His aggressive attempts to seize uncontrolled executive powers have met with little or no judicial oversight, with absolutely nothing but self-serving lip service to the rule of law from a Republican controlled Congress, with acquiescence and political cowardice from the opposition party, and with impotent press coverage by a supine, incurious and sometimes complicit fourth estate

The president's mad grab for unlimited power is being done under the guise of fighting terrorism -- but the security measures and political machinations are defined and plotted by his inner circle of allies behind closed doors. What a tragedy for our country that we have allowed one man, backed by a Republican Party's lust for power at any cost, to use 9/11 as an opening to pursue an authoritarian agenda.

As Benjamin Franklin put it over two centuries ago, "They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty."


George W. Bush not only has made us less free, he has made us less safe. The level of arrogance, recklessness, and lawlessness displayed by this president and his administration should arouse not only fear and concern -- but condemnation and outrage -- from every American.

Thank yesterday's Nader-ites for tomorrow's Supremes

Where are the Nader-ites today? Celebrating Bush's Supreme Court nominees? They must be. Proudly.

The "no difference between Bush and Gore" crowd has been strangely quiet for the past five years, yet who can forget their role in the 2000 presidential election?

I haven't forgotten, and neither has another guy I like to read, Andy Ostroy:

The Rehnquist-for-Roberts swap had little consequence. The O'Connor-for-Alito trade, however, has the potential to dramatically and dangerously shift the high court to the far right. The Democrats must come out in full body-armor on this one and fight to the death if we ever intend to preserve personal freedoms; the right to privacy; separation of church and state; and other constitutional bedrocks.

This nightmarish scare is the work of those misguided Nader-ites who, back in 2000, said there was "no difference" between Gore and Bush; who said they felt disappointed and betrayed by the Democratic Party; who said they needed to "send a message" of this frustration through their "protest vote" for Nader. They sent a message alright, and that message was..."Welcome to the White House, Mr. Bush." Want to talk betrayal? How about how the Nader-ites now feel having lived through five years of the Bush betrayal on humanity? Their unfortunate protest vote just might result in the conservative Taliban of this country setting back judicial progress 30+ years.

More ....

• The Ostroy Report (Tab down to "We Can Thank the Nader-ites for 'Scalito' Alito")
• The Nader Difference, 2000

The Supreme Court's role in protecting rights

This is a post, slightly revised, I made to a BlondeSense discussion of the Supreme Court's role in protecting citizens' rights:

I am not a legal scholar so I will, of necessity, keep my reasoning simple. You are correct that five Supreme Court justices, a simple majority, have no power to grant or deny rights. I agree -- unless they find a basis within the US Constitution for granting or denying those rights.

In our system of government, courts were given powers equal to those of the executive and legislative branches for a reason: to define and protect Constitutional rights that otherwise could easily be denied by the other branches.

So, interpreting the Constitution is not writing law or "rewriting law," as conservatives claim: it is the fulfillment of the Court's purpose in being. The fact that the Supreme Court has "discovered" rights that were not previously recognized by the legislative branch does not mean those rights were not inherent within the Constitution's framework.

Our country will survive only so long as all of us feel that we have a stake in its future. The founding fathers understood that principle. In the words of the Declaration of Independence, July 4, 1776, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The Bill of Rights, Amendment IX, states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Those self-evident truths apply to all of us -- male, female, black, white, liberal, conservative, straight or gay. Conservatives could, and some do, argue for a return to the day when the majority could simply ignore, even legislate against, the rights of any minority or class of people. They demand that all rights be determined through legislative action, and that some rights should be denied forever, even if that means amending the Constitution to deny rights they fear are being reinforced through the legislative process -- gay rights, for example.

If, as some argue, the Constitution has, from its inception, denied certain rights to certain people, then why are conservative groups exerting so much effort to amend the Constitution -- or to stack the federal bench with judges leaning toward the limitation of rights?

The Constitution, if it is to mean anything, must guarantee the same starting line for everyone. When laws are enacted and executive actions are taken that diminish the basic rights of the governed, the courts' role is to provide balance. No one's life should begin and end with a struggle for simple equality. No one's pursuit of happiness should be sacrificed to public opinion or political demagoguery.

The genius of our founding fathers was that they built flexibility into the Constitution to encompass rights in the future that were not fully recognized in the eighteenth century. The fact that blacks and women were barred from voting for many years, and that the Constitution was later amended to ensure recognition of their rights, does not mean that the foundations for eventual equality were not an integral part of the original Constitution and Bill of Rights.

Based upon the conservative view of "original intent," slaves could have remained slaves forever; women could still be waiting for the right to vote; our schools, military, businesses and marriages could still be segregated; gays could never hope for equal opportunity -- not because of a weakness of Constitutional principles but because of a failure to enact laws and policies to implement those principles.

To gain and to maintain our rights, must we depend always upon a fickle legislative branch to follow public opinion -- or, more likely, to reward the crowd that shouts the loudest or contributes the most campaign money? If that's the case, couldn't the rights we enjoy today disappear tomorrow?

Must we fight again, each election cycle, for rights already taken for granted? And do we want a different set of rights for different groups and classes of citizens, applied arbitrarily in various states and jurisdictions? Is the Constitution a document offering false hope to those who do not fit the majority's profile of "deserving" citizens?

I am simple-minded enough to believe that equal treatment under the law is our most precious and fundamental right. I know equality when I see it, and I want a Supreme Court that is not blinded by ideology. Equality and personal liberties must be protected by jurists who understand the concept of justice for all -- they must never become prisoner to the whims of either the US Congress or of fifty separate legislatures.

Both the executive and the legislative branches in Washington are controlled by powerful special interests. Today the religious right exerts undue influence on the Bush administration, and federal courts are being stacked with social and religious conservatives chosen for their narrow ideology, not for their appreciation of constitutionally-guaranteed rights. Republicans control both the agenda and the "advise and consent" role for the selection of federal judges.

In that sense, perhaps one party with one ideological view is attempting to sabotage the Constitution itself -- "to deny or disparage" the rights of anyone disagreeing with them on religious, social, scientific, medical and even economic grounds. That should give pause to everyone, whatever our political persuasion.

We need a Supreme Court that understands and upholds the Constitution. If my rights are not guaranteed today, will your rights be safe tomorrow?

'Her holiness' Harriet Miers is not a friend of gays

At age 60, Harriet Miers, if seated on the Supreme Court, is unlikely to flip a switch on decades of her religious and political beliefs -- even if she's a closet lesbian.

Miers is a successful career woman who, if she had so chosen, could have been exposed decades ago to gays and lesbians and their dreams for equality. She chose another route -- active and faithful participation in an evangelical, fundamentalist church in Dallas, Valley View Christian Church, a church unfriendly to the rights of gays.

Nothing in her known record indicates that Miers would, as a Supreme Court justice, rule contrary to her deeply held religious beliefs. In fact, unhappy with a "more contemporary style" in her church of 25 years, she is joining a small breakaway group opposing change -- not the sign of an open mind:

Valley View is changing its governance and worship to a more contemporary style under McCarty, who was hired in March 2004 and wants to attract young families. The breakaway group favors a more traditional approach...."

Miers has been a Bush loyalist and FOG, or "friend of George," for several years. And, like Laura Bush and Karen Hughes, she is a Southern Methodist alumna. Because of Bush's reliance on his religious fundy base, Miers must have been a member of the small inner circle who, like Hughes, played a significant role in shaping the Stupe's public stands on gay marriage, stem cell research, abortion, Terri Schiavo and other hot button issues. The secret tapes recorded by Doug Wead reveal the political "brilliance" (or is it religious spin?) that Miers finds irrestible in her idol.

In his support of Miers for the court, Bush adamantly insists that he knows her heart and that she will not change once on the bench. He should know: in the prevailing environment of "that ole time religion," she's the frigid north wind -- he's just a weathervane.

But why so many "conservatives" raising such a fuss on the Miers nomination? Despite all their pandering to the religious right, they apparently fear that Miers is the real thing. Could they fear that, once on the court, her religious faith -- or the Constitution -- could replace her loyalty to the man who put her there, the Republican Party, or even her church? What if she skips the latest James Dobson bulletin and reads the Sermon on the Mount instead? What if she takes her job seriously enough to ignore Falwell and Robertson, and finds a right to privacy in the US Constitution? What if she wakes up one morning and realizes that her freedom of worship depends on a strong wall of separation between church and state?

Without a clear record of loyalty to the cause -- a repressive Supreme Court being the cause of the day -- Republican extremists find Miers unacceptable. They may be wrong, but they demand certainty, not only of a nominee's adherence to a dogma but a knowledge of how one reaches her political positions: i.e., the order of ethical reasoning is critical. They are at war with Constitutionally-guaranteed rights. In their war, they demand proven generals, not foot soldiers who may one day refuse an order.

Why, though, are some liberals, like their conservative counterparts, prepared to believe that Miers may one day change her core beliefs? The Human Rights Campaign, for example, seems to have wished themselves into accepting the likelihood of Miers' future fair-mindedness based on a single question in an old 1989 questionnaire, nothing more. I ain't buying it. Neither is Marla, a blogger on Julien's List:

If you're queer or queer-supportive, Miers isn't your good buddy. Everything that matters in her history says she is antagonistic to your right to marry, that she lamely equivocates when your parental rights are at stake, and that she isn't going to be there for you when hate comes to shove any more than she was there for the Texas version of you when her hero, Shrub, made the highly unusual power move of walking onto the legislative floor to personally buttonhole lobby Texas legislators out of voting for a gay-inclusive hate crimes bill.

Read Marla's excellent essay here:

• HRC's Rose Colored Glasses

Read more on Bush, his religion and his women, here:

• Maureen Dowd, Breaking down Bush's women
• Ron Suskind, Without a doubt
• Albert Mohler, What should we think of Harriet Miers?
• James Dobson, Same-sex marriage would lead to 'marriage between daddies and little girls ... between a man and his donkey'

Old Crone briefed the Big Stupe on famous bin Laden memo

... but newspapers handle the AP photo quite differently

On its front page Tuesday, The New York Times published a photo of new U.S. Supreme Court nominee Harriet Miers going over a briefing paper with President George W. Bush at his Crawford ranch "in August 2001," the caption reads.

USA Today and the Boston Globe carried the photo labeled simply "2001," but many other newspapers ran the picture in print or on the Web with a more precise date: Aug. 6, 2001.

Does that date sound familiar? Indeed, that was the date, a little over a month before 9/11, that President Bush was briefed on the now-famous "PDB" that declared that Osama Bin Laden was "determined" to attack the U.S. homeland, perhaps with hijacked planes. But does that mean that Miers had anything to do with that briefing?

As it turns out, yes, according to Tuesday's Los Angeles Times. An article by Richard A. Serrano and Scott Gold observes that early in the Bush presidency "Miers assumed such an insider role that in 2001 it was she who handed Bush the crucial 'presidential daily briefing' hinting at terrorist plots against America just a month before the Sept. 11 attacks."

So the Aug. 6 photo may show this historic moment, though quite possibly not. In any case, some newspapers failed to include the exact date with the widely used Miers photo today. A New York Times spokesman told E&P: "The wording of the caption occurred in the course of routine editing and has no broader significance."

The photo that ran in so many papers and on their Web sites originally came from the White House but was moved by the Associated Press, clearly marked as an "Aug. 6, 2001" file photo. It shows Miers with a document or documents in her right hand, as her left hand points to something in another paper balanced on the president's right leg. Two others in the background are Deputy Chief of Staff Joe Hagin and Steve Biegun of the national security staff.

The PDB was headed "Bin Laden Determined to Strike in U.S.," and notes, among other things, FBI information indicating "patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks."

See . . .

Editor & Publisher
The President's 'Pit Bull'

Who stole the US Constitution?

Anti-war protestors have one more consideration this weekend in Washington:

If the executive branch has the power to designate an American citizen an "enemy combatant," and lock him up for "the duration," then it is under no obligation to demonstrate the guilt of that detainee. The suspect may simply languish in jail for years without ever having the opportunity to prove his innocence.

Moreover, if a former street thug can be so designated, then who else might qualify? A critical journalist? An anti-war protester? An activist who backed the "wrong" cause? A tourist who talked to the wrong person while traveling abroad?

That is a frightful power to grant any president. And if the appellate court's ruling stands, it means that an important guarantee embedded in the United States Constitution is no longer worth the paper it is printed on.

Hopefully, this chilling ruling will be overturned by the U.S. Supreme Court.

The bad news is that the author of the opinion, Judge Michael Luttig, is said to be under consideration by President Bush to fill a Supreme Court vacancy.

Read the Ledger editorial at Chilling Decision On Imprisonment

Abusing the Constitution...

"Back in the year 2005, when it had only 27 amendments, the U.S. Constitution was an austere and revered instrument.

"Now it's 2022, and with ratification of the 78th Amendment, the Constitution is something else.

"Apparently state and federal laws are never enough, not when the cameras are rolling. America just had to amend the Constitution over and over.

"Consider the issue that got the trend on a roll. By 2005 most states across the country had banned gay marriage. An act of Congress had insulated each from what any other state did. But that didn't prevent Republicans from pushing for a constitutional amendment to ban -– no, to double-ban -– gay marriage.

"Though largely pointless and redundant, the Federal Marriage Amendment became an indomitable force. After all, anyone who supported it was 'protecting the sanctity of marriage' and anyone who opposed it was 'denigrating the institution of marriage' or 'advocating bestiality' outright.

"In the years to come the same rhetorical dynamic would be applied to a host of other spurious amendments. Their approval would make the U.S. Constitution less of an austere statement of basic principals and more of a reactionary national blog."

More here... John Young at Waco Tribune-Herald