August 7, 2009
Do anti-hate crime laws expand double jeopardy?
States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. . . . A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment’s demand that no person suffer double jeopardy. In practice, however, this hasn’t happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn’t have the ability to try or retry a state defendant.
That’s what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What’s significant is that it greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.
In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd — which is precisely why this law’s drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.
An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict “left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.”
August 6, 2009
New book: "When Gay People Get Married"
Adapted from a news release by the Williams Institute at UCLA Law School:
Moreover, Badgett is interested in the ways that the institution itself has been altered for the larger society. How has the concept of marriage changed? When Gay People Get Married gives readers a primer on the current state of the same-sex marriage debate, and a new way of framing the issue that provides valuable new insights into the political, social, and personal stakes involved.
The experiences of other countries and pioneering American states like Massachusetts and California serve as a crystal ball as we grapple with this polarizing issue in the American context. The evidence shows both that marriage changes gay people more than gay people change marriage. In the end, Badgett compellingly shows that allowing gay couples to marry does not destroy the institution of marriage and that many gay couples do benefit, in expected as well as surprising ways, from the legal, social, and political rights that the institution offers.
August 4, 2009
ABA overwhelmingly calls for repeal of DOMA's ban on federal marriage recognition
The ABA's policy-making House of Delegates, meeting in Chicago, passed by an overwhelming voice vote a resolution calling on Congress to repeal a section of the Defense of Marriage Act that denies federal marital benefits and protections to lawfully married same-sex couples, according to the ABA Journal.
The measure neither favors nor opposes civil marriage for same-sex couples, but urges the federal government to recognize the rights provided by states that allow for such marriages.
August 3, 2009
Obama to award Presidential Medal of Freedom to Harvey Milk, Billy Jean King
President Obama will award Harvey Milk, the slain San Francisco supervisor and pioneer gay civil rights leader who was the subject of a major movie, the
Presidential Medal of Freedom, the nation's highest civilian honor. Milk will be the first openly gay civil rights leader to receive the medal. Tennis great Billy Jean King also will be honored. The ceremony will take place August 12. The full list and White House news release are here.
Marriage? Military? Employment rights? State-level gay activists differ on movement's priorities
Activists from state-based LGBT advocacy organizations met last week under the umbrella of the Equality Federation to share strategies, and some said that protections against discrimination in employment, housing and public accommodation are higher priorities than marriage or gays in the military.
August 2, 2009
Australia's ruling party affirms ban on marriage equality; activists protest
Gay activists staged mock weddings across Australia on Saturday as the governing Labour Party voted against changing its ban on gay marriage, Reuters reports. Demonstrators marched on the Labour Party's national policy-making conference in Sydney, chanting "gay, straight, black or white, marriage is a civil right." Inside the conference, 400 delegates earlier rejected changes to the party's policy, despite declaring strong opposition to discrimination against gay and lesbian people.