As I’ve just explained, I’m not a huge fan of Justice Kennedy’s opinion in Obergefell, even though I like the result.  However, there is one very good, very important thing in the opinion that I haven’t seen mentioned much, and which is critical to either an equal protection or a due process analysis.  It’s this (emphasis mine):

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment….

Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

The fact that a majority of the Supreme Court has now recognized homosexuality as an “immutable” characteristic strikes me as a very big deal (the Court has hinted at this before, especially in Lawrence v. Texas and Christian Legal Society v. Martinez, but before last week it had never come right out and said it).  In the eyes of the law, at least, homosexuality is no longer a “choice.”  It’s just the way people are – like race and other immutable characteristics.  Legally, that could be a very big deal down the road.  It also seems to me to deal a blow to the folks out there who continue to espouse the view that people choose to be gay.  They may still think that, but the Supreme Court of the United States now officially disagrees.

I’m not the first to notice this – Ian Millhiser at ThinkProgress, among others, has noted it too.  But I’m surprised it hasn’t gotten more attention.

The result in the Supreme Court's marriage case was absolutely right. But the opinion was a mess.

I was delighted to see the Supreme Court of the United States catch up with the Supreme Judicial Court of Massachusetts, and hold last week in Obergefell v. Hodges that same-sex couples must be allowed to marry on the same terms as opposite-sex couples.  That result seems to me a perfectly straightforward application of well-established legal principles, in particular, the Fourteenth Amendment’s guarantee of equal protection under the law.  Laws saying that same-sex couples can’t get married are obviously “discriminatory” in the literal sense of that word – they discriminate between people by denying a particular group of people benefits that other people get.  The state therefore has to justify the discrimination under the Equal Protection Clause, and in this case, they can’t.  And that’s pretty much it.  (Legal wonks: yes, there are complications relating to levels of scrutiny and the like – see the flip for more – but that’s the basic idea.)

Unfortunately, that’s not the approach that Justice Kennedy took in writing the Court’s majority opinion.  Instead, Kennedy delivered a soaring paean to the institution of marriage (sorry unmarried folks, you’re missing out on “our most profound hopes and aspirations”), and then went on for pages about autonomy, personhood, destiny, and dignity – all interesting and worthy topics, to be sure, but topics that are not well defined in legal terms.  He concluded as a result that the Court’s doctrine of “substantive due process,” specifically its “fundamental rights” jurisprudence that preserves rights deemed “fundamental” (by the Court) from government interference, gave same-sex couples the right to marry.

Substantive due process is risky territory (in addition to being something of an oxymoron).  Most notoriously, in the early 20th century, the Court repeatedly used substantive due process to invalidate a variety of worker protection and other progressive state laws in the so-called Lochner era, on the ground that they interfered with the supposedly constitutionally-protected liberty of workers to enter into any kind of contractual arrangement they pleased, however exploitative it may have been.  (Lochner v. New York itself invalidated a New York law limiting the number of hours that bakers could work in a single day to 10.)  Over the years, substantive due process has been criticized as simply an excuse for judges to enact their policy preferences into law, and there is a kernel of truth there.  For a similarly skeptical take on Kennedy’s opinion from another supporter of equal marriage, you can read Brian Beutler at TNR.

None of which is to say that I disagree with what Kennedy’s opinion said about the importance of marriage.  I actually agree with a lot of it.  But he could have gotten most of that in had he used the better-established, less-prone-to-judicial-abuse doctrine of equal protection.  An equal protection analysis would have required the Court to examine the stated justifications for the marriage bans, and to assess whether they are good enough to justify discriminating against LGBT people.  The answer, of course, is that they aren’t, and much of Kennedy’s rather free-floating commentary about marriage could have been put to better use in supporting that conclusion.

But is there really anything wrong with Kennedy’s opinion?  Maybe.  One possible problem with giving constitutional protection to, say, “dignity,” which is more or less what Kennedy did, is that it’s not hard to imagine “dignity” cropping up in other contexts where the result might be far less pleasing to those of us who liked the result in this case.  For instance, to return to everyone’s favorite example, is it so hard to imagine a Christian baker claiming that having to make a wedding cake for a gay couple infringes not only on her free exercise of religion, but also on her dignity?  Is there a legal basis for distinguishing a constitutionally-protected dignity interest from a non-protected one, beyond garnering the vote of a majority of judges on whichever court is hearing the case?  Will we now face a barrage of dignity-based lawsuits, with the courts having to distinguish among the various types and manifestations of “dignity” that come before them?  I’m not sure that’s a road down which we want to travel very far.

In other words, I think that the Obama administration’s suggested approach was right.  In arguing that the marriage bans should be struck down, the administration relied solely on equal protection, and did so in exceptionally convincing fashion (to me, at least).  You can read the whole brief for the United States here (PDF).  I’ve pasted in the brief’s summary of argument on the flip.  (Disclosure: Stuart Delery, one of that brief’s principal authors, is a friend and former colleague.)

Womens World Cup. US v Japan. Sunday

USA! USA! - promoted by david

For those of you unaware (’cause it’s not on ESPN, it’s on Fox Sports) the US Women’s National Team has, for the fourth consecutive time, made it to the World Cup finals. They will play Japan who ‘defeated’ England after a heartbreaking ‘own goal’, in stoppage time, by the Lionesses last night. I believe the final is scheduled for 7pm Eastern Time, Sunday night… Fox Sports. Check your local listings…

This is a re-match of the 2011 Women’s World Cup finals which saw the US lose to Japan. Despite deserving to lose to England the Japanese team is formidable: they play meticulous — often technically perfect — football. The US Women have played inconsistently (with the marked exception of Hope Solo who has got her game going on) but have saved the low spots for the lesser teams like Columbia and the Swiss and their larger efforts for the better teams: we beat Germany 2-0, for example. Germany and England play for third place on Saturday…

Also, relevant to previous conversations, FIFA President Sepp Blatter will not attend the final of the Women’s World Cup citing “personal reasons”… Probably been diagnosed with an acute fear of arrest with extradition.

MassBudget FAQ: Expanding School Meals and Implications for School Funding Formulas

Massachusetts: better and better, every day in every way. ;-) - promoted by Bob_Neer

Massachusetts schools are phasing-in a set of improvements to their school meals programs–expanding free breakfast and lunch for many kids, increasing federal revenue, and reducing administrative record-keeping. These changes help ensure that more kids eat healthy meals every day they’re learning at school, and yet, for technical reasons, they have forced the state to consider some adjustments to how it distributes school funding. MassBudget’s just released a new factsheet that responds to some frequently asked questions, with a particular focus on how they affect our Chapter 70 education aid formula.

The full FAQ has more detail, but here are the basics:

  • Historically, at the beginning of every school year, families have filled out income forms to apply for free or reduced school meals.
  • As the best available data on family income, the state used meal status to determine the relative need of different school populations and distribute funding accordingly.
  • Recognizing that many low-income families are already enrolled in other public programs that use similar income criteria (e.g. food stamps), districts have been simplifying the school meal application process by directly enrolling kids for free meals if they are already enrolled in one of these other programs. This new process is called Direct Certification.

Congressman McGovern: Opening U.S. Embassy in Cuba a Victory for American Diplomacy

Rep. McGovern is awesome. - promoted by Bob_Neer

waving cuba us flags

Today, Congressman Jim McGovern (MA-02), a senior House Democrat and leading advocate of modernizing U.S. relations with Cuba, praised the announcement by President Obama that the Administration has reached a deal with Cuba to re-establish diplomatic relations and re-open embassies. The effective date for re-establishment is July 20 when the Cuban government will re-open its embassy in Washington.

“Today’s announcement that the U.S. will re-open its embassy in Cuba is a victory for American diplomacy and a strong step forward for all who are working to achieve modern, normal relations between our two countries,” Congressman McGovern said. “In 2015, Americans know it’s time to embrace a truly 21stcentury approach to foreign policy that leaves the Cold War behind. This historic action brings us one step closer to making that a reality.

“By re-opening embassies in each other’s countries, we will be able to create new economic opportunities for American businesses, increase travel and exchanges, and support efforts to strengthen democratic reforms and human rights protections,” McGovern added. “I want to thank President Obama and Secretary Kerry, along with the two negotiating teams, for their leadership and work to make this happen. Today, the U.S. and Cuba are saying with one voice that we are ready to create a better future for our countries and our people. I look forward to seeing the U.S. flag waving proudly above our embassy in Havana later this month.”

In December 2014, when President Obama first announced the normalization of U.S. relations with Cuba, Congressman McGovern joined Secretary Kerry to welcome home Alan Gross, the American aid worker who was released from Cuba the same day.

Contrary to Predictions Market Basket is Thriving

You can pay your workers. Stop making excuses. - promoted by charley-on-the-mta

A very illuminating article on the one year anniversary of the worker walkout that saved a landmark local company and thousands of well paying jobs with good benefits and generous profit sharing. Contrary to same nameless naysayers, the shelves are stocked and the sky didn’t fall.

Despite losing nearly half a million in lost sales, last year was still it’s most profitable on record.

The company is on track to record total revenues of about $4.8 billion in 2015, top executives say, the most in its nearly 100-year history. It is also in expansion mode, opening five new stores in the last year, some with upscale accents such as massive gourmet cheese islands, expanded organic food offerings, and outdoor cafe seating. Two new stores are under construction in Plymouth, Mass., and Rochester, N.H.

What about all that debt the nameless naysayer was worried about?

Analysts at the time predicted the debt burden would force Market Basket to either back away from its discount pricing model or curtail its unusually generous profit-sharing plan for employees.

‘Our business model is completely intact, and we’re running the shop with a lot less distractions.’

But so far, executives say, neither has happened. More than $129 million was handed out in employee bonuses and profit-sharing contributions in the past year, which is on par with prior years. And the consumer research firm Nielsen found, in a June report on supermarket pricing, that the company’s groceries were 15.9 percent cheaper than its competitors’ in the first six months of 2015. That’s nearly a full percentage point better than the same period in 2014.

“The whole fiasco last year has done nothing but increase its business,” said Kevin Griffin, publisher of the Duxbury-based Griffin Report of Food Marketing. “It increased curiosity about the company and strengthened existing customer loyalty.”

Thank you workers and Artie T for saving one of my favorite local companies, one I continue to recommend to U Chicago alum moving to the area, and whose lobsters I proudly brought back to Chicago last time I was home. The future in laws said it tasted as good as one freshly caught in the Philippines. Well done!

Joke Revue: Jeb Bush Surprised How Easily Stance On Confederate Flag Set Him Apart From Other Republican Candidates

And don’t miss the weatherperson profiled by Professor Oliver in his review below, along with his adroit reference to Boston (Go Bruins!).


Jeb Bush Surprised How Easily Stance On Confederate Flag Set Him Apart From Other Republican Candidates

TALLAHASSEE, FL—Expressing satisfaction with the unexpected bump in his polling numbers, Republican presidential candidate Jeb Bush confirmed Monday that he was astonished by how easily his stance on removing the Confederate flag from the South Carolina Capitol set him apart from the rest of the GOP field. “When I tweeted in support of taking down a widely recognized symbol of racism and white supremacy, I thought I’d fall pretty squarely in line with the other Republican candidates, but fortunately I was wrong,” said Bush after competitors in the GOP primary race either refused to voice an opinion to avoid offending voters or suggested that the decision should fall to the state’s lawmakers, establishing himself as the most sane member of the field “with pretty much zero effort.” “All I had to do was offer a basic sentiment about how they should take down a flag widely considered to represent slavery and horrific racial oppression, and boom—suddenly I’m the only enlightened one in the group. I wish everything was this effortless.” Bush reportedly expressed relief that he was able to stand out on the Confederate flag issue and wasn’t forced to change his stance on climate change, abortion, taxes, immigration, the economy, foreign policy, budget spending, education reform, or national defense.

BBJ's Bombshells, or What's the Matter With Marty Walsh?

Today is the big unveiling of the 2.0 version of Boston 2024's plan. Watch this space... - promoted by david

“what we know today is that Walsh has been far more invested in the city’s stretch for the Games than he initially let on, whether or not his team ever reviewed Olympics Bid 1.0 in its entirety.”


As a Western Massachusetts resident, I don’t know much about Boston politics. But it seems like every month there’s another example of Boston’s Mayor doing something democratically graceless, if not downright sleazy. There was an agreement with the Grand Prix committee loaded with his friends and former staffers. Now, based on a Freedom of Information request, the Boston Business Journal levels a number of charges:

Mayor Marty Walsh and his staff confirmed to the Business Journal this week that City Hall never reviewed last winter’s formal bid to host the 2024 Summer Olympics in Boston. That’s a problem.

"All Hail to Massachusetts!"

Leading the way. - promoted by david

That is the title of our official state song and I would submit good advice for all Americans this week.  Despite being a political scapegoat for everything the Right, including a certain former GOP Governor trying to win presidential primary votes, finds wrong with the country (except when they misappropriate tea party imagery and rhetoric), the legacy of our fair Commonwealth was solidified by my count in three ways this week.

The Confederate flag, to many a symbol of slavery and the wrong side of the Civil War, was removed, or proposed to be, from many public and private venues this week.  Massachusetts was the first state to abolish slavery and the first state to send troops and to take fire in the Civil War.  We also provided the famous 54th Colored Regiment whose exploits are depicted in the movie “Glory”.  (Side note: President Obama’s eulogy of Hon. Rev. Clementa Pinckney is worth a watch; toward the end he sings Amazing Grace quite well.)

SCOTUS once again upheld “Obamacare” probably securing its legal legitimacy once and for all.  As you know this law is based largely on one promulgated in Massachusetts and signed by the aforementioned GOP Governor who went on to make us the butt of his political jokes.

Today, SCOTUS ruled that marriage equality must be recognized throughout the United States following, albeit with a several year lag, their counterparts on the Supreme Judicial Court of the Commonwealth.  According to one cartoon I saw today God will not strike the country with lightening just as He didn’t in MA because all He has in stock today are rainbows:)

Now if only we could get the country to follow our lead on stricter gun controls.

Boston 2024 CEO says he'd vote "yes" on ballot question banning public funding for Olympics

A continuing discussion. Be sure to have a look at the comments. - promoted by Bob_Neer

Tuesday, the United Independent Party announced that it has officially partnered with Yes On 1, the organization that led the anti-gas tax initiative last year, to run a campaign for a ballot question that would protect taxpayers from the cost of a potential Boston 2024 Olympics. It’s a case of strange bedfellows, since the UIP opposed Question 1, but the groups agree on the need for preventing taxpayer money from being used for the Olympic games. The initiative would bar state funding from going towards anything other than transportation improvements.

Yesterday, during a radio debate with No Boston Olympics, Boston 2024 CEO Rich Davey was asked what he thought about the UIP initiative, responding, “I would vote yes on that, absolutely.” This is big news, since while Boston 2024 had previously said they’d support a statewide referendum, they’d been hazy on the specifics. Endorsing the UIP initiative, which is broad and binding, signifies that they’re willing to truly commit to not using taxpayer money for the Games.

So if even the bid committee supports a ban on using public money for the Olympics, why aren’t our elected officials getting on board? The legislature recently voted down an amendment to the same effect, instead opting to require a hearing before they spend any taxpayer money. How about the legislature listens to the will of the voters and passes the ban, so citizens don’t have to waste the time and money on a ballot initiative that does it for them?

The Lesser of Two Evils: Let’s Reform, not Remove Testing

There will be a test on this post tomorrow. - promoted by Bob_Neer

I want to share testimony that I gave during the Joint Committee on Education’s June 11th hearing regarding standardized tests. While I think we should look at how to reduce the burden of testing on students, I heard many calls during the hearing to get rid of accountability altogether. Here’s why I don’t think that should happen.

Throughout my life, I’ve lived in low-income neighborhoods. I’ve seen the effects poverty can have on a community, and I’ve seen how hard it is to overcome those effects. And, I know firsthand just how hard it is because I’m trying to overcome a childhood of poverty myself.

My family immigrated to this country a few years before I was born. I grew up with an extended family, including several cousins. From an early age, I could see that while I loved going to school, some of my cousins didn’t feel the same way.

Year after year, we went from grade to grade and school to school together. However, while I worked hard toward a goal of going to college, I saw some of my cousins drift further and further away from finishing high school. I don’t know exactly where our paths started to diverge, but I what I do know is that this fall I will be entering my senior year at Northeastern, and two of my cousins are in prison.

I have watched the school-to-prison pipeline claim members of my family, and I want to make sure Massachusetts doesn’t have schools feeding that very same pipeline.

A report by the Lawyer’s Committee for Civil Rights and Economic Justice, a Boston-based non-profit, found that in the 2012-2013 school year Black students in Massachusetts received 43 percent of all out-of-school suspensions and 39 percent of expulsions, despite making up only 8.7 percent of students enrolled.

Students who are suspended once are twice as likely than their peers to drop out, and those who drop out are, in turn, 8 times more likely to end up in the criminal justice system than students who graduate. It’s a cliche, but, if something doesn’t change we seriously need to  either build better schools or bigger prisons.

We need accountability in schools. I can only imagine where my cousins would be today if someone had caught on and intervened with them. Instead, their challenges were un-addressed and ignored until it was too late.

"Breaking faith" with the Voters: A Tale of Two Ballot Questions

I think not lowering the income tax to five percent, and not implementing the clean elections referendum are both examples of breaking faith with the electorate. - promoted by Bob_Neer

The Justices of the Supreme Judicial Court have ruled that the income tax proposal the Senate included in its budget is not unconstitutional, ending the legal controversy, but not the political controversy.

The Senate’s income tax plan would freeze the personal income tax rate at its current rate (5.15 percent) rather than allowing a formula to remain in place that year by year automatically lowers it to 5 percent. The plan would also increase the personal income tax exemption and the state earned income tax credit, thus providing a modestly progressive adjustment to state income tax collections.

Opponents of the plan have taken to saying that the proposed freeze amounts to “breaking faith” with the electorate that voted back in 2000 to reduce the rate to 5 percent. The Herald used the phrase in a recent editorial. And Governor Baker repeated the charge in an interview on Boston Public Radio last week.

“Breaking faith” — that sounds grave. It’s a phrase that might lead you to think, for example, that the Legislature has never before tampered with a ballot question that the voters had passed. Well, that’s an assumption easily disproved. We can start with a pair of ballot questions, one from 1998 and the other from 2000.

In 1998, voters approved with 58 percent of the vote a ballot question providing for public financing for political candidates who agreed to fund-raising limits. The Legislature, whose leadership abhorred the new law, refused to provide the revenue necessary for its operation. The law remained on the books for a while, but the lack of funding kept it from taking effect.

In 2000, two years after the voters approved the public campaign financing initiative, a question to reduce the state income tax from 5.85 percent to 5 percent over the course of three years was on the ballot. Republican Governor Paul Cellucci strongly supported this proposal, and his administration worked hard to convince skeptical voters that the state could afford this enormous tax cut without cutting state services. The Governor’s Secretary of Administration and Finance was dispatched to proclaim that, far from resulting in service cuts, the tax rate reduction would stimulate economic activity and produce more revenue. In what was likely one of the last straight-faced invocations of the Laffer curve, the Secretary promised: “when you cut taxes you have a stimulating effect” (Globe, 10/31/2000). As it happens, the Secretary was Stephen Crosby, the current chair of the state Gaming Commission, who yesterday promised that casino gambling will bring as much as $400 million annually to the state.

Voters approved the tax rate cut that November, although by a lesser margin than the public campaign financing initiative had received two years earlier. But even before the year was out, state tax collections had begun to drop precipitously: the tech stock bubble was bursting. Only weeks after promising no cuts in services, Secretary Crosby was rethinking the entire situation. “That’s a colossal drop” in tax collections, he said. “That’s like falling off a cliff. That gives the message that we need to be ready” for spending reductions (Globe, 12/24/2000).