(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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Arrest Trends in Milwaukee, 1980-2011–Part One

Earlier this month, the ACLU released this interesting report on arrests for marijuana possession. The ACLU found a steady increase since 1990 in the number of arrests nationally for possession of pot. By 2010, arrests for this crime had come to account for nearly half of all drug arrests. Moreover, the ACLU also found that racial disparities in marijuana arrests increased right along with the number of arrests, even though surveys indicate that whites and blacks use marijuana at about equal rates.

Neither Wisconsin nor Milwaukee County performed well on the racial disparity front. Statewide, blacks are six times more likely to be arrested for marijuana possession than whites, which is considerably higher than the national average of 3.73. Milwaukee County’s disparity number was also above the national average at 4.7.

Coincidentally, at about the same time the ACLU released its report, the federal government’s Bureau of Justice Statistics unveiled a new on-line, interactive arrest-data tool, which permits detailed searches of arrest data from individual cities dating back to 1980. I thought it would be interesting to examine Milwaukee’s numbers over time. I focused on arrests by the Milwaukee Police Department, which differed from the ACLU’s focus on county-level data. (The MPD is only one of several law enforcement agencies in Milwaukee County, albeit the single largest.)

The first graph below shows the annual number of arrests by the MPD by race. Unfortunately, no data were available for 1986, 1998-2000, or 2004; otherwise, every year from 1980 through 2011 is included.  

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Who Screamed? Experts, Rules, and the Zimmerman Trial

The Zimmerman homicide trial in Florida is an important bellwether on many levels. My colleague David Papke has already remarked on the jury’s composition and its possible effect on the outcome.  The evidence too is controversial and contested. The notorious 911 call recording is deemed critical, yet the trial judge excluded expert testimony on voice identification as unreliable. Her ruling rippled across the country and may even hold lessons here in Wisconsin.

The 911 call recorded a man’s voice “screaming” for help. The screamer’s identity is disputed. George Zimmerman has claimed self-defense. Prosecution experts asserted, however, that the plea came from the victim, Trayvon Martin, moments before he was shot dead. A bevy of defense witnesses, including specialists with the FBI and the NSA, attacked the methods used by the State’s experts.

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