(Marriage) Equality and the Popularity Paradox

=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition.

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Edward Snowden: Whistleblower or Traitor?

1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you.

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Race, Gender and the Zimmerman Trial

Now that the selection of the jury has been completed, the trial of George Zimmerman for shooting African American teenager Trayvon Martin is even more likely to be the most racially charged trail since that of O.J. Simpson. What’s more, gender will now be important as well.

Much to the disappointment of Martin’s family and civil rights advocates, the jury will include absolutely no African Americans. In addition, none of the four alternate jurors are African American. According to census figures, Florida’s Seminole County, where the trial will take place, is 11% African American.

As recently as fifty years ago, Florida did not even allow women to serve on juries, but, in the Zimmerman trial, all of the jurors will be women. Five of the six jurors have children, and two of the four alternate jurors are also women with children.

In an ideal world, the race and gender of the jurors in a trial such as Zimmerman’s would make no difference. However, Jose Baez, lead counsel in the successful defense of Casey Anthony for killing her daughter Caylee, said the racial make-up of the Zimmerman jury made the case a “slam dunk” for the defense. Widener Law Professor Jules Epstein, meanwhile, argued that the female jurors would be especially sympathetic to the loss of a child and therefore would empathize with Martin’s grieving mother.

I lack the experience to make an intelligent prediction about either the outcome of the trial or the significance race and gender will have in that outcome. Nevertheless, I’m certain that considerations of race and gender will be important in the court of public opinion. Despite ideological pronouncements that all are equal in the eyes of the law, the American public does not take this to actually be true. Americans believe that race, gender, and wealth are major factors in what the legal system produces and invites us to take as “justice.”


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