Integrity Legal

It recently came to this blogger’s attention that issues surrounding same sex marriage have recently been analyzed by mainstream media outlets. To shed light upon this development further it may be best to quote directly from an insightful article written by Tara Siegel Bernard on the official website of the New York Times, NYTimes.com:

“There is the possibility that, even without DOMA on the books at all, that a married same-sex couple might not be treated as married by the federal government as to some particular program, benefit or obligation because of simply how the particular federal program determines eligibility in looking to state law to see if a person is married or not,” said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders…But legislators have come up with a fix. The Respect for Marriage Act, which was introduced in both the House and Senate in March, repeals the Defense of Marriage Act and  also includes a provision — known as “certainty” — that says marriages that are valid in the state where the couple got married will be recognized in other states for the “purposes of any federal law in which marital status is a factor…”

The administration of this blog strongly recommends that readers click upon the relevant hyperlinks noted above to learn more.

In previous postings on this web log it has been pointed out that the ramifications of the so-called “Defense of Marriage Act” (DOMA) are such that discrimination results for same sex bi-national couples as well as the LGBT community at large. In recent years, legislators such as Representative Jerrold Nadler and Representative Mike Honda have introduced legislation such as the Uniting American Families Act (UAFA), the Reuniting Families Act, and the Respect for Marriage Act. The Respect for Marriage Act would seem to have been designed in order to deal with some of the more glaring separate sovereignty issues that arise in the context of intraState, interState, and State-Federal recognition of same sex marriage. To expound upon this more it may be best to quote further from the aforementioned article:

Technically speaking, he said, the repeal of the Defense of Marriage Act on its own should be enough for couples to receive federal recognition. But the certainty provision would also protect couples if a less gay-friendly administration interpreted the repeal more narrowly, and only recognized same-sex marriage for couples who lived in states that recognized their marriage. Mr. Moulton said that his organization was still working with members of Congress to build support for the bill, and educating them about “the concrete harms that DOMA has done to same-sex couples…”

For those who read this blog with any frequency it has, no doubt, been noticed that the administration is in opposition to the very existence of DOMA as that legislation infringes upon the sovereign rights of the States and the people to make decisions regarding the licensure of marriage and the maintenance of consensual relationships, respectively. That stated, since DOMA is still “on the books” it currently results in the separation of same sex bi-national couples in an immigration context and discrimination against the LGBT community in a broader sense. This certainty provision noted above is interesting as it pertains primarily to Federal rights and privileges in an interState context. Therefore, if a same sex couple marries in a State which legalizes and/or solemnizes same sex marriage, then the Federal benefits derived therefrom would likely travel with that couple no matter what State they travel to and no matter what Federal benefit they seek. This blogger would argue that perhaps this scenario would already occur pursuant to the privileges and/or immunities clauses, but in this situation it may be best to have some legislative guidance in order to streamline possible future policies pertaining to same sex marriages. As of the time of this writing UAFA, the Respect for Marriage, and the Reuniting Families Act have yet to be adopted, but hopefully, for the LGBT community’s sake, that will change sooner rather than later.

For related information please see: Full Faith and Credit Clause.

Tags: certainty, DOMA, Full Faith and Credit Clause, Gay & Lesbian Advocates & Defenders, LGBT, lgbt immigration, lgbt visa, Representative Jerrold Nadler, Representative Mike Honda, Respect for Marriage Act, Same Sex Bi-National Couple, Same Sex Bi-National Couples, same sex civil union, same sex civil unions, Same Sex Marriage, same sex marriages, uafa, Uniting American Families Act
Posted in same sex visa, States' Rights | No Comments »

I have sworn on the altar of God eternal hostility against every form of tyranny over the mind of man.

–Thomas Jefferson (3rd President of the United States of America, First Secretary of State [Washington Administration])

Gay rights are human rights.

– Secretary of State Hillary Rodham Clinton (Former First Lady of the United States)

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

– 9th Amendment of the United States Constitution, quoted from Wikipedia

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

– 10 Amendment of the United States Constitution, quoted from Wikipedia

It recently came to this blogger’s attention that the Federal Reserve Bank of Richmond located in the sovereign Commonwealth of Virginia has taken political criticism for flying a rainbow flag (traditionally viewed as a flag denoting support for the LGBT community and, for some, their struggle for equal protection under United States law and/or equal recognition of same sex marriage solemnized and/or legalized in one of the sovereign American States, the District of Columbia, or the Federal territories, if applicable). To quote directly from an article by Olympia Meola posted on the official website of the Richmond Times-Dispatch, TimesDispatch.com:

Del. Robert G. Marshall, R-Prince William, is asking the Richmond Federal Reserve Bank to remove the rainbow flag flying below the American flag outside of the building, calling its presence “a serious deficiency of judgment by your organization, one not limited to social issues.” In a letter to Richmond Fed President Jeffrey M. Lacker, Marshall says the homosexual behavior “celebrated” by the bank “undermines the American economy…”

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks noted above to read this story in detail in order to gain further insight into this developing situation.

This blogger must pause this analysis for a moment of personal observation. It is intriguing that Delegate Marshall would seem to be trying to scapegoat some of the blame for recent economic events upon the LGBT, Lesbian, Gay, Bisexual, and Transgender (transsexual, or “third sex“), community. This blogger must retort: how could the LGBT community “undermine” America’s economy? Explain this? Especially since a great deal of economic activity that produces revenue in America comes from married couples trying to make a living, build a home, and start a family. Is it in dispute that marriage and family generate economic benefits for America? If it is not, then the only way the LGBT community could be at fault for some hypothetical economic downturn would seem to arise from the fact that they have not started families (and therefore not generated the concomitant economic activity derived therefrom) due to the fact that they cannot gain the same legal recognition of their relationships in the same way that those in different-sex relationships are able to. This is especially true in the context of same sex bi-national couples as some of these relationships are separated by thousands of miles and jurisdictional boundaries due to the fact that federal enforcement of the so-called “Defense of Marriage Act” (DOMA) does not allow a same sex bi-national couple to petition for the same US visa benefits (such as the CR1 visa or the IR1 Visa, not to mention the K1 visa which is a US fiance visa) in the same manner as a different sex couple. There are currently American federal legislators such as Representative Mike Honda and Representative Jerrold Nadler who have introduced legislation, such as the Reuniting Families Act, the Uniting American Families Act, and the Respect for Marriage Act; which would, to one degree or another, at least end the current discrimination that the bi-national LGBT community faces when trying to reunite with family in the United States of America. Apparently this Federal Reserve Bank was flying this flag pursuant to a request from another organization which appears dedicated to the cause of LGBT equality:

The flag is being flown at the request of PRISM, a Richmond Fed group representing gay, lesbian, bisexual and transgender employees and allies.

This PRISM organization should be commended for their efforts on behalf of the LGBT community, but this blogger must say that he would like to see legislation passed which provides tangible benefits to the LGBT community rather than a gesture from a private corporation which, at least ostensibly, has no role in deciding American policy toward legal recognition of LGBT relationships. Others echoed some of these sentiments, but for what are, in this blogger’s personal opinion, the wrong reasons:

Its presence also prompted mention from Victoria Cobb, president of The Family Foundation in an email release on Wednesday. Although the Federal Reserve is a private entity, it is disappointing to see it participate in this celebration,” she said.

This blogger is always a bit skeptical when a group uses the term “family” when describing themselves as it is usually an indicator that such an organization has its own idea about what the definition of “family” actually is. Concurrently, such organizations are sometimes known to attempt to foist their own paradigm or definition of family upon others who may not necessarily share the same view. Therefore, readers are asked to always conduct their own research on all aspects of such issues in order to form their own well informed opinions.

This blogger must confess that this recent display of support for LGBT equality by the Fed seems a bit disingenuous considering the timing and circumstances. It has recently been reported on some mainstream and alternative media outlets that there are currently worries growing about the state of the American economy. Meanwhile it recently came to this blogger’s attention that the government of China is reported to have diminished their position in United States Treasuries. To quote directly from an article written by Terence P. Jeffrey and posted to the website CNSNews.com:

(CNSNews.com) – China has dropped 97 percent of its holdings in U.S. Treasury bills, decreasing its ownership of the short-term U.S. government securities from a peak of $210.4 billion in May 2009 to $5.69 billion in March 2011, the most recent month reported by the U.S. Treasury. Treasury bills are securities that mature in one year or less that are sold by the U.S. Treasury Department to fund the nation’s debt. Mainland Chinese holdings of U.S. Treasury bills are reported in column 9 of the Treasury report linked here…

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full and learn more. This situation is only brought up in the context of this posting to elucidate the fact that the Fed is currently in something of a “pickle”. This news comes upon the heels of recent announcements (noted in a previous posting on this blog) that the USA and China are set to be engaging in cooperative efforts in the context of relations with the Association of Southeast Asian Nations (ASEAN). Clearly, current American relations with China and countries in Southeast Asia are multi-facted and complex so those interested in such topics are encouraged to conduct thorough research before forming opinions on issues associated with American, Chinese, and ASEAN economic policies and relations.

It was recently reported on the website Law.com that the Federal Reserve has come under intense scrutiny from legislators such as Representative Ron Paul for current policies supposedly being maintained by the Fed. To quote directly from an insightful article written by Shannon Green and posted on the website Law.com:

The Congressman criticized the Fed for its reluctance to disclose to the public when banks are unhealthy. Paul said the Fed’s practices of protecting banks’ privacy appears to be at odds with the U.S. Securities and Exchange Commission, which is pushing companies to reveal more information.

Readers are strongly encouraged to click upon the relevant hyperlinks noted above to read this article in full to gain more context.

Whether one agrees or disagrees with positions held by the various members of House of Representatives is not really relevant to the issue of the Fed’s decision to hoist this particular flag at this particular time. Although it is certainly a commendable gesture, this blogger’s response, with all due respect, must be: why so late, and why now? If the Fed is raising the Rainbow flag because they genuinely support LGBT Equality, then great; but if this institution is simply raising this flag because of political expediency or to score some sort of “political points”, then one must ask: why? Hopefully the LGBT community will see their equal rights fully vested soon and this valid grievance will be redressed. In the meantime, this blogger hopes that the American economy will rebound from any relative downturn to find itself more vibrant and dynamic than ever, but some developments take time. For those personally impacted by the current state of affairs: it is hoped that change will come sooner rather than later.

Readers should note that in the context of same sex marriage this blogger feels that fundamentally the issue of LGBT equality is an individual rights issue as the right to enter into a consensual relationship with whomever one wishes is an inalienable natural right reserved to the People notwithstanding the Constitution, but nevertheless enshrined within the provisions of the 9th and 10th Amendments noted above. The implied right of “free association” has also long been held to provide Constitutional protection for Americans wishing to form intimate associations with others. Concurrently, this blogger feels that where sovereign States have heeded the call of their citizenry to provide government licensure of same sex marriages or marital unions, then that licensure acts as an imprimatur of sovereign recognition which, in this blogger’s opinion, cannot be negated by the federal government and must be accorded Full Faith and Credit by sister States within the Union. Those unfamiliar with the Full Faith and Credit Clause should note that Congress can make rules regarding the effect of State law upon other States, but, in this blogger’s opinion, such law cannot be made to render the States’ laws ineffective, which is the current result of the federal government’s application of some, or all, depending upon circumstance; of the provisions of the so-called “Defense of Marriage Act“. This blogger must point out that although same sex couples ought to be able to get Full Faith and Credit for those marriages solemnized and/or legalized in one of the sovereign States of the United States of America, they may not necessarily see States which do not permit same sex marriage in an intrastate context engaging in the legal procedure of divorcing same sex couples as this blogger believes that one must utilize a “horizontal vs. vertical” analysis of the Full Faith and Credit Clause in the context of same sex marriage since there is both an intrastate and interstate component to such an analysis. Such an analysis could, at times, result in a situation where a State Court permits recognition of the fact that a same sex marriage exists in another State jurisdiction, but the Full Faith and Credit Clause’s provisions may not necessarily be interpreted to mean that States should be compelled to grant same sex divorces if the public policy of the State in question does not permit State sanctioned legalization or solemnization of such unions in the first place.

On a side note, this blogger just thought of an interesting hypothetical: could a federal Court with concurrent federal jurisdiction over State territory grant divorces for same sex couples who were married in another State jurisdiction (which allows same sex marriage) if the underlying State’s public policy runs counter to the notion of granting recognition for such unions? It would currently seem that pursuant to the Erie Doctrine the US Courts under such circumstances may be prohibited from undertaking certain functions pertaining to same sex marriages if the underlying State’s law does not recognize such unions. That stated, as of the time of this writing any such analysis remains mere speculation as a broadly binding legal opinion on these issue has yet to be handed down.

Readers interested in learning more about the struggle for LGBT Equality are encouraged to check out UnitingAmericanFamilies.Net, Lez Get Real, and/or the Immigration Equality Action Fund Blog.

For further related information please see: Rainbow Flag or US Company Registration.

Tags: ASEAN, ASsociation of Southeast ASian Nations, Bisexual, Commonwealth of Virginia, companies, CR1 Visa, Defense of Marriage Act, Del. Robert G. Marshall, DOMA, equal protection, Federal Reserve Bank of Richmond, Gay, House of Representatives, IR1 Visa, K1 Visa, Lesbian, LGBT, LGBT community, Mainland Chinese, PRISM, Representative Jerrold Nadler, Representative Mike Honda, Representative Ron Paul, Respect for Marriage Act, Reuniting Families Act, Richmond Fed President Jeffrey M. Lacker, Same Sex Bi-National Couples, Same Sex Marriage, States' Rights, third sex, Transgender, transsexual, U.S. Securities and Exchange Commission, U.S. Treasury bills, U.S. Treasury Department, Uniting American Families Act, US Fiance Visa
Posted in American Business, China Business, Editorial, Opinion, same sex visa, States' Rights, US Business, US Company Registration, US Constitution, US LLC | No Comments »

It recently came to the attention of this blogger that legislation has been introduced in the jurisdiction of the sovereign State of South Carolina which would incorporate provisions for “sound money” or “legal tender reform” therein.  To quote directly from the website of Midlands Connect at MidlandsConnect.com:

COLUMBIA (WACH) — South Carolina lawmakers are proposing a bill that would give the state another form of legal tender. Sen. David Thomas, a Republican from Greenville, wants to make gold and silver coins another option in the Palmetto State.  Lawmakers are calling it the Sound Money Legislation. “I’m no financial expert but am I smart enough to know that you can’t keep printing money when it has no backing,” says SC Republican Representative Mac Toole. Thomas also wants a special joint committee to study the need and process for establishing an alternate currency.  Read the entire bill here.

The administration of this web log strongly encourages readers to click on the hyperlinks above to gain further insight on this developing story.

Readers of this blog may be aware that the sovereign Commonwealth of Virginia appears to have a similar bill in her legislature while the Governor of the sovereign State of Utah recently was reported to have signed similar “sound money” legislation thereby apparently enacting legal tender reform in that State.

Meanwhile, the issues associated with States’ Rights are coming to a head in the context of the sovereign State of Arizona as that jurisdiction may see a bill brought to the State legislature which would divide the State into two separate sovereign States. To quote directly from what appears to be a Reuters story posted on Yahoo News Canada:

TUCSON, Arizona (Reuters) – A long-simmering movement by liberal stalwarts in southern Arizona to break away from the rest of the largely conservative state is at a boiling point as secession backers press to bring their longshot ambition to the forefront of Arizona politics. A group of lawyers from the Democratic stronghold of Tucson and surrounding Pima County have launched a petition drive seeking support for a November 2012 ballot question on whether the 48th state should be divided in two.

Readers of this blog are asked to click upon the hyperlinks above to learn more about this interesting state of affairs.

Under American law it is generally considered possible in an intraState context to see a State legally and peaceably subdivide herself. This is not a common occurrence within the American political system and the ramifications on a geopolitical level could be tremendous. At the same time, such a subdivision could have an important impact upon American national politics as the addition of a new American State to the United States of America would mean that the United States House of Representatives and and the United States Senate could see new membership traveling to those hallowed halls from a newly created “Baja Arizona” (the current label apparently being applied to the as-yet unborn State).

How all of these issues will play out over the course of the coming weeks and months remains to be seen, but one thing is clear: it is an interesting time to be an American.

For related information please see: Full Faith and Credit Clause.

Tags: Baja Arizona, Commonwealth of Virginia, Full Faith and Credit Clause, Legal Tender, Legal Tender Reform, Pima County Arizona, Representative Mac Toole, secession, Sound Money Legislation, State of Arizona, State of South Carolina, State of Utah, Tucson, United States House of Representatives, United States Senate
Posted in States' Rights | No Comments »

Much to her credit Secretary of State Hillary Clinton once declared:

“Gay rights are human rights.”

Although this blogger may not have personally agreed with every one of the opinions espoused by Mrs. Clinton over the years, he can at least state that she has been a zealous and effective advocate, where possible, for the rights of the LGBT community. However, this blogger might add that the statement quoted above could be construed as incomplete.  In order to elucidate why this statement may be incomplete this blogger would need to quote directly from a recent posting on the website Lez Get Real:

Sen. Al Franken is the newest co-sponsor of legislation introduced in the U.S. Senate late last week that would give binational same-sex couples the same rights as married couples for immigration purposes. The Uniting American Families Act is authored by Democrat Patrick Leahy of Vermont and is sponsored by 18 other Democrats. Even though same-sex marriage is legal in seven jurisdictions in the United States, couples in which one partner is not a citizen do not have any right under current federal law.

Frequent readers of this blog may recall that Representative Jerrold Nadler recently introduced similar legislation in the United States House of Representatives. To continue by quoting an interesting question raised in the previously cited posting on Lez Get Real:

DOMA’s repeal will enable gays and lesbians – same-sex spouses – to sponsor foreign spouses for green cards so why do we need both bills before an unfriendly house at the same time?

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to read the full story on the website cited above in order to gain further insight and perspective into this posting.

The question above raises a great many issues that are both complex and, at times, controversial; but go to the heart of the current struggle to secure equal rights for all Americans under the law of the United States of America.  Getting back to Mrs. Clinton’s remark: it is perhaps incomplete because it fails to take into consideration the rights of the Several States. The United States Constitution is composed of 50 co-equal sovereign States as well as a Federal government which has enumerated powers to perform certain functions while reserving the residual inalienable rights to the States and the People respectively. One of the rights which the States have always reserved unto themselves is the right to legalize and/or solemnize a marriage within their jurisdiction. Notwithstanding this fact, the United States Federal government decided to pass legislation referred to colloquially as The “Defense of Marriage Act” (DOMA). By doing so, they rode roughshod over the rights of the States to make decisions regarding the intra-State definition of marriage and how State sanctioned marriages between two people of the same sex would be treated by other States (including the Federal government which is a separate sovereign from the 50 States), but at that time this was not readily apparent due to the fact that States had yet to change the law regarding what constitutes a marriage.

To shed more light upon these issues it may be best to quote directly from an extremely insightful article on the subject of Full Faith and Credit by Justice Robert H. Jackson and posted on the website, RobertHJackson.org:

By other articles of the Constitution our forefathers created a political union among otherwise independent and sovereign states. By other provisions, too, they sought to integrate the economic life of the country. By the full faith and credit clause they sought to federalize the separate and independent state legal systems by the overriding principle of reciprocal recognition of public acts, records, and judicial proceedings. It was placed foremost among those measures(n69) which would guard the new political and economic union against the disintegrating influence of provincialism in jurisprudence, but without aggrandizement of federal power at the expense of the states.

To quote the Full Faith and Credit Clause directly:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Some have discussed the issue of Full Faith and Credit at length with this blogger and cite the quotation above noting that Congress does have the power to prescribe laws regarding the “Effect” of State legislation. This blogger would concur with such an assessment, but the current provisions of the Defense of Marriage Act (DOMA) do not merely regulate the Effect of duly solemnized and legalized same sex marriage in the States which allow such unions, but instead DOMA makes such legislation wholly INEFFECTIVE because that law simply refuses to recognize the validity of same sex unions. In this blogger’s opinion this is clearly violative of the U.S. Constitution as true Full Faith and Credit has not been accorded to same sex marriages legalized within those sovereign States.

In Justice Jackson’s concurring opinion in the case of Youngstown Steel & Tube Co. v. Sawyer the following framework was created for analyzing executive action:

In determining whether the executive has authority, there are three general circumstances:

1. When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.
2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest.

This blogger asks that readers click on the hyperlinks above to understand this case further.

To continue analyzing this issue: it is this blogger’s opinion that States’ Rights issues in connection with Full Faith and Credit could be analyzed in a similar manner to the first prong of the analysis used by Justice Jackson to adjudicate Presidential authority. When the Sovereign States act pursuant to an express or implied authorization of their legislatures or pursuant to the will of the People (ex. a State referendum), then shouldn’t the greatest amount of Full Faith and Credit be accorded to the laws created therefrom? Why does the Federal government get to override sovereign prerogatives clearly reserved to the States and the People, respectively? Clearly, from the plain language of the Full Faith and Credit Clause Congress can make rules regarding the regulation of the Effect of such legislation on other States which do not have similar prerogatives, but, in this blogger’s opinion, the Federal government simply cannot unilaterally overrule, either preemptively or after the fact, State prerogatives simply by citing their power to regulate the Effect of such prerogatives.

To get back to the issue of the Uniting American Families Act (UAFA) vs. repeal of DOMA (either outright or through a statute similar to the Respect for Marriage Act). In this blogger’s opinion the reason that both of these bills are on the floor stems from the inherent tensions which arise as a result of the fact that the USA uses a federal system within her Constitution providing concurrent jurisdiction for 1 Federal government as well as 50 State sovereigns. Institutions within government, especially the US Federal government, are often loathe to give up power. By recognizing that refutation of marriages solemnized and legalized within sovereign State jurisdiction is outside of their bailiwick the Federal government could be construed to have conceded to a practical loss of authority on such issues (which this blogger believes that they do not have to begin with).

Concurrently, there are sound political reasons for having both bills out there on the floor of the Federal legislature. One, it provides a better chance of seeing at least some progress on this issue. If a DOMA repeal is not possible within this session, but passage of UAFA can occur, why not take it? At the very least passage of UAFA could lead to reunification of same sex bi-national couples who are geographically separated due to the provisions of DOMA. Therefore, this blogger would argue that such a strategy is sound, but those within the LGBT should not lose sight of the ultimate goal: full equality under the law. IF UAFA can be secured along the way, all the better, but mere passage of that legislation should not be viewed as the end of the struggle.

To sum up, the issues associated with accordance of Full Faith and Credit to same sex marriages solemnized and legalized by a sovereign State with appropriate jurisdiction are myriad and few, if any, have been resolved, but they continue to be some of the most interesting issues to be currently debated in the realm of U.S. Constitutional law. In conclusion, although it is not debatable in this blogger’s mind that Gay Rights are Human Rights. Perhaps Gay Rights are States’ Rights as well?

For related information please see: Same Sex Visa.

Tags: Defense of Marriage Act, DOMA, Full Faith and Credit, Full Faith and Credit Clause, Gay Rights, Gay Rights News, Justice Robert H. Jackson, Representative Jerrold Nadler, Respect for Marriage Act, RFMA, Senator Al Franken, Senator Patrick Leahy, uafa, Uniting American Families Act
Posted in same sex visa, States' Rights | No Comments »

It recently came to this blogger’s attention that a 9th circuit decision in the United States Federal Court System regarding issues associated with the 4th Amendment as well as issues which could impact American agencies such as the United States Customs and Border Protection (USCBP) Transportation Security Administration (TSA) and the United States Immigration and Customs Enforcement Service (USICE, but sometimes referred to simply as ICE) has been handed down.  To quote directly from a recent article posted on Yahoo News at Yahoo.com:

If you can’t let a day go by without accessing your personal data and files, you’d better think twice about crossing the border back into the U.S. with your computer.  That’s because digital devices such as a laptop computer can be seized at the border without a warrant and sent to a secondary site for forensic inspection.

That ruling from the U.S. Court of Appeals for the Ninth Circuit last week is the second in less than a year that allows the U.S. government to conduct offsite searches of digital devices seized at the border without a warrant, Network World reported.

This could have big implications for business travelers, in particular, who are increasingly mobile and frequently carry laptops and other digital devices containing sensitive personal and company information across our borders. If your data reveals traces of criminality or illegal kinkiness when examined, your troubles will go way beyond temporary data denial.

This blogger has yet to take a great deal of exception with regard to American policy regarding the 4th Amendment at Ports of Entry in the United States of America as most occurrences that this blogger deals with in connection to such matters involve those who are not American Citizens, or for that matter sometimes not even lawful permanent residents or non-immigrants. Therefore, due to the wide latitude granted to Congress under their plenary authority regarding matters touching upon non-US Citizens and immigration policy it is difficult for this blogger to make cogent hypothetical arguments for people who have few, if any, rights under the American legal system. That said, when it comes to the search and seizure of American Citizens it is clear that Constitutional protections of Americans’ liberties must be taken into zealous consideration. The aforementioned article continued on Yahoo.com:

Writing for the majority, Judge Richard Tallman said, “The border search doctrine is not so rigid as to require the United States to equip every entry point — no matter how desolate or infrequently traveled — with inspectors and sophisticated forensics equipment.”

The administration of this blog highly encourages all readers to click upon the above cited hyperlinks to read more from this thought provoking story.

This blogger does not particularly take exception with the notion of the so-called “border search doctrine” per se, but this blogger has always felt as though little consideration has been accorded to the notion of the rights, privileges, and immunities of both United States Citizenship as well as underlying State Citizenship (if applicable to the individual being legally analyzed as some individuals come by their United States Citizenship either through operation of law or naturalization).

With all due respect to this Court as their decision had to be made pursuant to the unique set of law and facts available under the circumstances, this blogger’s “hackles get raised” anytime the issues associated with the fundamental rights, privileges, and immunities of United States Citizenship are at issue. Therefore, in order to shed more light upon this subject to the readership of this blog this blogger felt it might be enlightening to note some language from the introduction of the dissent in this case as quoted directly from Judge Betty B. Flecther:

I respectfully dissent. The “sticking point” of this case is not whether the Government’s authority “to subject incoming travelers to inspection for entry also permits the Government to transport property not yet cleared for entry away from the border to complete its search.” Maj. Op. at 4219-20. The real issue, as this case is framed by the government and the majority, is whether the Government has authority to seize an individual’s property in order to conduct an exhaustive search that takes days, weeks, or even months, with no reason to suspect that the property contains contraband.^[1] In other words, the problem with this case is not that the Government searched Cotterman’s computer in Tucson as opposed to Lukeville. The problem is that the Government seized Cotterman’s laptop so it could conduct a computer forensic search, a time consuming and tremendously invasive process, without any particularized suspicion whatsoever. [emphasis added]

Those reading this blog are highly encouraged to click upon the links above to read the entire opinion as posted on Google Scholar.

Clearly, the ruling in this case could have a dramatic impact upon those individuals traveling in or through the United States of America. That said, it remains to be seen whether or not this case sees appeal to the United States Supreme Court and should such an appeal be heard: the opinion thereof.

For related information please see: Arrest Warrant.

Tags: 4th Amendment, Arrest, arrest warrant, Criminal Law, Criminal Procedure, Detainment, Google Scholar, U.S. Court of Appeals for the Ninth Circuit, United States Customs and Border Protection Service, United States Immigration and Customs Enforcement Service, United States Supreme Court, USCBP, USICE
Posted in Extradition, US Constitution, US Warrants, USCBP, USICE | No Comments »

In previous postings on this blog it was noted that the issue of impeaching of President Barack Obama was brought up in the context of the administration’s current position regarding enforcement of the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of that posting, the notion seemed a bit more far fetched compared to the tone some lawmakers and advocates on Capital Hill are now taking especially in light of the recent events in Libya and what appeared to be partisan acrimony in the lead up to the 11th hour agreement to keep the United States government funded.

Many legislators seem rather fixated upon the President’s recent actions in Libya and elsewhere in North Africa. To quote Representative Ron Paul directly from his recent speech on the floor of the United States House of Representatives (as found at approximately the 2:00 minute mark of the YouTube video referenced in the aforementioned hyperlink):

“It is against international law and it challenges the war powers resolution…”

Meanwhile, dissenting voices are not only heard on the Republican side of the current political aisle as Democratic members of Congress have voiced concern about Mr. Obama’s recent decisions regarding the situation in Libya. To quote directly from Representative Dennis Kucinich (approximately the 2:40 mark) in a video on YouTube from a broadcast which would appear to have initially aired on Russia Today, the Representative summed up his position on Obama’s decision regarding Libya, when asked if the President’s actions were impeachable and for further elaboration on that subject:

…He did not abide by the Constitution…

Readers of this blog are highly encouraged to click upon the hyperlinks above to view these videos in detail in order to gain real insight on these issues. Concurrently, it would appear as though American advocates for Constitutional adherence are becoming increasingly vocal in their opposition to recent policies of the Obama Administration as writer Ben Smith noted in a concise and interesting article on the website Politico, to quote directly from Mr. Smith:

A prominent libertarian constitutional lawyer and civil libertarian has drafted an article of impeachment against President Obama over his attack on Libya, throwing down a legal gauntlet that could be picked up by some Congressional Republicans

Bruce Fein, a former Reagan administration official in the Department of Justice and chairman of American Freedom Agenda writes in his 15-page argument of Obama’s course that “Barack Hussein Obama has mocked the rule of law, endangered the very existence of the Republic and the liberties of the people, and perpetrated an impeachable high crime and misdemeanor.”

This blogger undertook some research regarding Mr. Bruce Fein as he appears to be a very learned individual especially regarding the subject and intentions underlying the drafting of the United States Constitution. Recently, Mr. Fein was featured in a 2 part interview on YouTube’s Alex Jones Channel and his analysis of the issues at play as well as the Constitutional legal principles underlying those issues was highly insightful, especially for those who may be unaccustomed to a truly thoughtful analysis of Constitutional law and the original intentions behind the adoption of the Checks and Balances system inherent to the Separation of Powers embodied within the provisions of the Constitution itself. Many people are under the mistaken impression that the only issues that come up with regard to the United States Constitution pertain to the so-called “Bill of Rights”, the reference to the original 10 Amendments to the Constitution which most clearly elucidates the rights, privileges, and immunities of States and People of the United States of America. However, the provisions regarding the relationships and interrelationships between the Several States and the Federal Government, the People and the Federal Government, the States’ relationships amongst themselves, and the States’ relationship to the People are more clearly defined within the provisions of the US Constitution itself.

One quote that this blogger felt was of most significance during the interview came when Mr. Fein stated (at approximately the 5:20 minute mark of the interview mentioned above):

“…The fundamental rule of law is at stake here.”

Later in this same interview (at approximately the 8:30 minute mark at part 2 of this interview) Mr. Fein went on to take exception with an apparent policy that Americans can be placed upon “assassination lists” if found to be an imminent threat to the country. Mr. Fein took exception with this policy based upon a belief that the United States government is not permitted to take the life of an American Citizen without the due process of law.  He went on to note that the so-called “Patriot Act” is “being used against us” (use of the word us implying the American People). Those interested in these issues are strongly encouraged to click on the links above and review this interview as it is quite insightful.

That said, a final resolution to the issues being brought to the foreground by Representatives such as Mr. Kucinich and Dr. Paul as well as advocates such as Mr. Fein has yet to manifest itself from the bubbling cauldron that is the American political system. To paraphrase Ted “Theodore” Logan from one of this blogger’s all time favorite movies, Bill & Ted’s Excellent Adventure: Strange Things Are Afoot On Capital Hill. How the issues noted above will play out in a Congress that just barely managed to patch together an 11th hour resolution to keep the government funded remains to be seen.

Strictly speaking, proceedings such as impeachment have a more political character compared to, say, a legal proceeding, but the outcomes of such proceedings can have legal consequences as well as consequences in the policy arena. To be candid, such events can even have geopolitical consequences as evidenced in the waning days of the Presidency of William Jefferson Clinton or, arguably, those of Richard Nixon or even Andrew Johnson. Therefore, in today’s interconnected world American Presidential impeachment can have ramifications for people as geographically distant as China or the Nations comprising the Association of Southeast Asian Nations (ASEAN).

In real terms, all hyperbole aside: is impeachment possible? Certainly, it is always a technical possibility under the provisions of the United States Constitution. The question to be asked by the observant student of political and legal history in the United States is: can Senatorial removal be considered a real possibility? This is a much murkier issue as the Senate of the United States is currently dominated by members of the Democratic Party who would likely prove less-than-willing to vote to remove a President of their own Party. To put it as simply as possible, it is this blogger’s opinion that notwithstanding the possibility that articles of impeachment may be introduced against Mr. Obama, the possibility of seeing those articles of impeachment adopted by the full House of Representatives is simply that: a possibility.

To sum up, whatever one’s opinions are regarding Mr. Obama’s administration there is one thing that is certain: he will be running for a second Presidential term. Mr. Obama recently announced that he would be seeking the office of the Presidency for a second time. To quote directly from The Link Paper at thelinkpaper.ca:

US President Barack Obama announced his decision to run for a second term as he called upon his supporters to mobilise for the 2012 election campaign. “This campaign is just kicking off,” Obama said on his official website. In a message to his supporters through email, text and video, titled ‘It Begins with Us’, Obama said he would be filing his papers to launch his campaign for a second term.

As of yet, it would appear as though Mr. Obama’s main Presidential challengers have yet to officially reveal themselves. Although the reconvening Congress may be more interesting even than that which very nearly shutdown only mere hours ago.

Tags: Alex Jones, Articles of Impeachment, Barack Obama, Ben Smith, Bruce Fein, Checks and Balances, Defense of Marriage Act, DOMA, Obama Impeachment, Obama To Run For Reelection, Patriot Act, Politico, President Obama, Representative Dennis Kucinich, Representative Ron Paul, Russia Today, Separation of Powers, The Link Paper
Posted in US Constitution | No Comments »

The administration of this blog has been monitoring the evolving situation in the United States of intrastate legislation among some of the sovereign 50 States to reform legal tender laws. There are some recent developments regarding this interesting and legally complex issue that could have ramifications for the global commodities markets, global business community, APEC, ASEAN, Thailand, and China. To quote directly from Stephen Dinan, The Washington Times, in a post on the TruthAlliance.net website entitled “Utah Senate Passes Gold/Silver Legal Tender Law; Awaits Governor Signature“:

The Utah Legislature on Thursday passed a bill allowing gold and silver coins to be used as legal tender in the state — and for the value of their precious metal, not just the face value of the coins.

In a previous posting on this blog it was noted that the lower chamber of Utah’s government, the Utah House of Representatives, had passed the legislation referred to above, but at that time there seemed to be little information pertaining to the reasoning behind the passage of such legislation. The article cited above is quite informative in its coverage of this unfolding situation. To quote further from the aforementioned article:

The legislation directs a state committee to look at whether Utah should recognize an official alternate form of legal tender which could become a path for creating a formal state gold standard.

A spokeswoman for Gov. Gary R. Herbert, a Republican, said he has not yet taken a public stance on the bill.

State Rep. Brad J. Galvez, the chief sponsor of the measure, said he views it as a preliminary step on the path toward securing Utah’s business climate.

“If the dollar continues to fall, what this will do will help stabilize the value of the dollar in Utah, so it helps stabilize the economy,” Mr. Galvez, a Republican, said.

While similar legislation has been proposed in nearly a dozen states, Mr. Galvez said that if Mr. Herbert signs his bill, Utah will be just the second state to official recognize the coins as legal tender. Colorado has recognized gold and silver for decades, he said.[sic]

Those reading this posting are encouraged to click on the hyperlinks above to read the text of this article in full.

Clearly, Utah is not the only American State that is taking monetary measures with an eye toward maintaining a comparative advantage in the national and international business markets along with a healthy State economy. It will be interesting to see what position will ultimately be taken by the Governor of Utah as his stance on the issue has yet to be discerned as of the time of the writing cited above. Issues involving the currency within States can have tremendous ramifications and it would appear that due consideration is being taken.

The article was also notable for this blogger as it elucidated a thought from a legislator in Virgina who is advocating for similar legislation in that State. To quote further from the article by Stephen Dinan:

In Virginia, Delegate Robert G. Marshall, a Republican, successfully pushed through a bill — not yet signed by the governor — that authorizes the state to mint gold, silver and platinum coins. He said that there is probably a good market for collectors who would prefer not to have to buy federally minted coins and said state-minted ones would create a backstop against inflation.

“I’m looking at Congress, and I’m looking at what the Chinese are doing, and I don’t have a lot of confidence in what’s going on there,” Mr. Marshall said. “This is one way where Virginia can help our citizens as a security hedge against the inflationary action of Congress.”

This was an interesting insight for this blogger because it provides hope that more legislators on the State level are looking abroad when formulating policies which are designed to have a direct impact upon the lives of State Citizens. Although the United States Federal government’s enumerated powers provide wide latitude in matters of an international character, some international trends can have a significant economic impact upon the economics of a purely intrastate nature. Therefore, in the world in which we now live even legislators at the State level must have an eye on the evolving business and economic dynamics of countries as far geographically afield as Thailand, China, or any of the Association of Southeast Asian Nations (ASEAN) Member states in order to make fully informed decisions regarding the enactment of legislation which could impact those within that legislature’s jurisdiction.

As noted in the quotation above, the Governor of Virginia has yet to sign the legislation pending in that State. Therefore, the ultimate outcome remains to be seen, but one thing remains clear: few lawmakers are taking this legislation lightly as evidenced by the alacrity of these legislatures’ votes and the taciturn position of these States’ respective Governors.

This issue is coming to the foreground of the national political spectrum at a time when the legal issues surrounding the issue of same sex marriage and interstate Full Faith and Credit Clause interpretation versus the Federal-State sovereign relationship in the context of same sex marriages legalized and solemnized pursuant to the laws of sovereign American States is coming to the attention of the United States Federal Appellate Courts in the form of cases which have the potential to directly contravene the provisions of the so-called “Defense of Marriage Act” (DOMA). In an American Immigration context, Federal legislators such as Representative Jerrold Nadler of New York have continued to push legislation such as the Uniting American Families Act (UAFA) which would allow the United States Department of Homeland Security and the Department of State to adjudicate petitions for same sex “permanent partners” of United States Citizens and Lawful Permanent Residents in the same manner as different sex couples.  How the issues associated with legal tender reform and the issues associated with Full Faith and Credit for State recognized same sex marriages will be resolved remains to be seen, but clearly such issues will remain noteworthy as time goes on.

For information related to these issues please see: US Visa Thailand or Same Sex Visa.

Tags: Governor Gary R. Herbert, Governor of Utah, Governor of Virginia, Legal Tender Reform, Same Sex Marriage, The Utah Specie Tender Act of 2011, Uniting American Families Act, Utah House Bill 317, Utah House of Representatives, Utah Legislature, Utah Senate, Utah State Representative Brad J. Galvez, Virginia Delegate Robert G. Marshall
Posted in American Business, American Institute Taiwan, ASEAN Business, Cambodia Business, China Business, Fiance Visa Thailand, Myanmar (Burma) Business, News, Online Gaming, States' Rights, Thailand Business, Upcoming Legislation, US Constitution, US Visa Thailand | No Comments »

In what could possibly be one of the most convoluted political and legal issues currently in the American zeitgeist it has been reported by various sources that President Barack Obama is under pressure from many different groups regarding his recent decision not to enforce key provisions of the so-called “Defense of Marriage Act” (DOMA). To quote directly from an article posted on AfricaOnline.com:

Former Speaker of the House Newt Gingrich suggested last week that President Obama overstepped his constitutional bounds when he announced he would no longer defend Defense of Marriage Act in court.

In matters pertaining to United States Constitutional law the lines between the political and legal spheres begin to blur and for this reason the issues surrounding what may be the most interesting legal situation in recent history are difficult to sort out for those who have not kept up with the evolving posture of this issue. To provide a brief summation: the United States Federal government is currently barred from recognizing marriages between same-sex couples pursuant to the provisions of the Defense of Marriage Act (DOMA). Meanwhile, 7 jurisdictions in the United States, including 6 sovereign States, currently license same sex unions. Meanwhile, many sovereign American States have promulgated State Constitutional amendments forbidding recognition of marriage between same sex couples. Currently, there is a case that has been adjudicated by the Massachusetts Federal District Court which found that States have a fundamental right to marry those within their jurisdiction. Amongst advocates of States’ Rights, the significant issue in the DOMA cases is: FEDERAL recognition of same sex marriages legalized and solemnized within the States’ jurisdiction. To continue quoting Mr. Gingrich according to AfricaOnline.com:

“Imagine that Governor Palin had become president,” Gingrich said. “Imagine that she had announced that Roe versus Wade in her view was unconstitutional and therefore the United States government would no longer protect anyone’s right to have an abortion because she personally had decided it should be changed. The news media would have gone crazy. The New York Times would have demanded her impeachment.”

For those unfamiliar with the Roe versus Wade decision, this was the Supreme Court case which allowed women to receive abortions based upon an interpretation of the US Constitution. It is interesting that Mr. Gingrich noted the lack of “Mainstream Media” attention to this issue as there are those who could argue that the issue of equal rights for the LGBT community is an issue often overlooked by major media outlets. Clearly, the issue of same sex marriage is provoking strong reaction from various sectors of the American political spectrum, to quote directly from the website ThinkProgress.org:

Now, in the right’s furor over the administration’s announcement that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), Rep. Trent Franks (R-AZ) is calling for Obama to be impeached.

After the Arizona Republican advocated defunding the Department of Justice if it does not defend Section 3 of DOMA – “I would support that in a moment,” remarked Franks – he went on to say that he would “absolutely” favor impeaching President Obama and Attorney General Eric Holder if such a move “could gain collective support”…

It would appear as though this issue is causing a great deal of political turmoil for Mr. Obama, but what is even more interesting are the underlying issues at stake for both the LGBT community and the sovereign States which comprise the United States of America.

To be clear, this blogger fully believes that the right to marry whomever one chooses to marry is a fundamental inalienable right and equal protection of that right should be accorded to members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community. In this blogger’s personal opinion, if two people wish to consensually enter into a marital union, then their respective genders should not be relevant for purposes of government recognition of that union. However, there is an even stronger argument in favor of requiring Federal recognition of same sex marriage and this argument stems from the fact that 6 states have allowed some form of same sex union (civil union or marriage). Clearly, States have traditionally been vested with the power to solemnize and legalize marriages within their respective jurisdictions and the Federal government should be required to recognize such unions, but the provisions of DOMA preclude such recognition. For example, same sex bi-national couples who have legalized a marriage in, say, Massachusetts cannot be accorded the same immigration benefits as their different-sex counterparts pursuant to the provisions of DOMA. There has been some discussion of legislation such as the Uniting American Families Act (UAFA) which would rectify this problem in the context of United States immigration, but this still leaves a fundamental question unanswered: when did the Federal government get the right to dictate to the States what shall constitute a marriage?

As to the Obama Administration’s decision to not pursue cases in support of the Defense of Marriage Act: the sentiment is laudable, but ultimately this action may not be in the best interests of the LGBT community as such inaction results in fewer, if any, cases or controversies coming before the Supreme Court thereby removing the platform for the Supreme Court to make a broad binding decision regarding the Defense of Marriage Act itself (and possibly the overall issue of same sex marriage in general), the Full Faith and Credit Clause, and the other legal issues, such as discrimination against same sex bi-national couples, which come “part and parcel” with continued enforcement of the Defense of Marriage Act.

It is this blogger’s personal opinion that the United States Supreme Court will find in favor of recognition of same sex marriage, but in what could prove to be a sort of convoluted decision wherein Justices such as Scalia, Thomas, and Roberts find in favor of the right of the States to set policy regarding who can get married within their jurisdiction while the more “liberal” or “civil libertarian” wing of the Court finds in favor of granting same sex couples the right to Federal recognition of a legally solemnized State marriage based more upon a finding that the issue is one of civil rights.

For related information please see: LGBT Visa.

Tags: Add new tag, Attorney General Eric Holder, Barack Obama, civil rights, Constituional Law, Defense of Marriage Act, DOMA, Full Faith and Credit Clause, LGBT Rights, Newt Gingrich, Obama Administration, Representative Trent Franks, same sex civil union, Same Sex Marriage, same sex visa, States' Rights, Supreme Court, Trent Franks, uafa, Uniting American Families Act, US Consitution
Posted in Editorial, lgbt immigration, Opinion, same sex visa, States' Rights, US Constitution | 1 Comment »

It recently came to this blogger’s attention through the Huffington Post website that a legislator in the sovereign State of New Hampshire has introduced a bill that could criminalize certain activities of the Transportation Safety Administration (TSA). To quote directly from the story posted on the Huffington Post official website:

A Republican state representative from New Hampshire named George Lambert has co-sponsored a bill that would make it a felony to touch or view someone’s private parts without probable cause.

Lambert was interviewed by MSNBC on Wednesday to discuss the bill, which would apply to TSA pat downs, as well as the agency’s x-ray scanners. The bill would essentially make it a sexual assault to conduct an invasive pat down or look at images of a traveler on one of the TSA’s new high-tech scanners.

Clearly, the TSA’s current policies on so-called “pat downs” (which many argue are unduly invasive and violate Constitutional protections prohibiting unreasonable search and seizure) and scanning are under fire from many different circles. However, the question must be posed: is New Hampshire Constitutionally permitted to enforce criminal sanctions against TSA officers? TSA officers operate under the jurisdiction of the United States Federal government’s Department of Homeland Security. Most currently binding American jurisprudence has found against the notion that State’s may enforce State law against Federal agents or institutions. The most notable case in this vein is probably McCulloch v. Maryland. In the language of the McCulloch decision, the Court found that the State of Maryland did not have the right to levy a tax upon the Bank of the United States. This decision set the stage for the, now rather sophisticated, premise that the States’ power to enforce State law is curtailed when attempting to enforce that law against the Federal government. Through later cases, this notion was expanded upon. This blogger recently found an interesting article on this topic entitled: What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause. This article delves deeply into the issues associated with Federal preemption of State prerogatives in matters pertaining to Federal operations and Federal agents and this blogger highly recommends those interested in this issue click on the link above to read this article.

It would appear from the plain language of the McCulloch decision that the States’ ability to enforce actions against the Federal government are not restricted completely. To quote directly from page 2219 of the What Kind of Immunity? article noted above, the article’s authors, Seth P. Waxman and Trevor W. Morrison, cited a section of the McCulloch decision which is noteworthy:

[N]o principle [of state power] . . . can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested insubordinate governments, as to exempt its own operations from their own influence.

At first blush, the above citation may appear to fully favor the Federal authorities on the issue of whether the sovereign State of New Hampshire has the authority to enforce criminal penalties against TSA officers, but one phrase is critical to an analysis of New Hampshire’s proposed legislation and that phrase is “legitimate operations“. In the McCulloch case, the Bank of the United States was deemed to be a legitimate operation of the Federal government notwithstanding the fact that the Constitution did not expressly permit such an institution because the Court reasoned that the Federal government, through the Necessary and Proper Clause, could establish a bank so as to facilitate the express Federal powers granted under the Taxing and Spending Clause. In short: the Federal government’s ability to tax and spend is considered a “legitimate operation” of the Federal government and if a bank facilitates that operation, then it is operating lawfully.

This analysis begs the question: Is groping Americans’ genitalia (also referred to as “enhanced pat downs”) and capturing nude body scanner images a “legitimate operation” of the Federal government? If not, then the State may have a right to enforce State criminal law against those who engage in such activity. That said, this issue is far from resolved and the State of New Hampshire has yet to actually promulgate this legislation, but clearly the issues noted above make for interesting jurisprudence.

For related information please see: US States.

Tags: Department of Homeland Security, DHS, Enhanced Pat Downs, Federalism, George Lambert, McCulloch v. Maryland, New Hampshire, Preemption, Seth P. Waxman, Sovereign State of New Hampshire, State Representative George Lambert, States' Rights, Supremacy Clause, Transportation Safety Administration, Trevor W. Morrison, TSA, TSA Body Scanners, TSA Genital Groping, TSA Groping, US Constituion
Posted in Department of Homeland Security, States' Rights, Transportation Security Administration (TSA), US Constitution | No Comments »

It recently came to this blogger’s attention that the Attorney General of the United States, apparently at the request of the President, has opted to discontinue pursuing cases that would enforce the provisions of section 3 of the so-called “Defense of Marriage Act” (DOMA). To quote directly from a letter written from United States Attorney General Eric Holder to the Speaker of the United States House of Representatives the Attorney General noted:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

The administration of this blog highly recommends that those reading this posting click on the links above to read the Attorney General’s actual letter to Congress regarding this matter. That said, the administration of President Barack Obama should be guardedly commended for their position on this controversial and important matter. This announcement could be a boon to the LGBT community and the unfortunate same sex bi-national couples who are separated due to the fact that there has yet to be passage of legislation such as the Uniting American Families Act (UAFA) which would circumvent DOMA and thereby allow those persons married to someone of the same sex to petition for immigration benefits in the same manner as their different sex counterparts. Bearing that in mind, there are some who could argue that the administration’s position on the issue could cause some unanticipated problems for those who wish to see swift equalization of rights for the LGBT Community, at least in the short term. Such an argument could be based upon the fact that failure to pursue these cases could lead to a situation where the public is unable to get the issue before the Supreme Court (more analysis on this below). To continue quoting from the Attorney General’s letter to Congress:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As noted in the first sentence of this above cited paragraph, the administration’s decision not to pursue Federal cases to block recognition of same sex marriages could theoretically stall efforts at ultimate recognition of same sex marriage in the Courts. The reason for this is based upon the fact that Courts can only “make new law” when there is a “case or controversy” pending before them. The President’s failure to pursue such cases could effectively blunts efforts to get same sex marriages recognized in the Courts. To put it simply: a case involving the issue of the Defense of Marriage Act (DOMA) can only get before an Appellate Court (including the Supreme Court) if the party that lost in the lower court brings an appeal. Where the Obama administration has stated that they have changed their position on the issue of judicial scrutiny of same sex couples the fact still remains that in order for the Courts to render a final decision on the issue, a case must be properly brought before them. The Holder letter went on to note:

We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Interpretation of this line of the letter is critical for the future of same sex marriage cases pending before the Courts because the Obama administration (or a later administration, for that matter) may be placed in a position in which they are forced to appeal against a ruling in favor of same sex couples in order for the issue to be brought to the official attention of the higher Courts (most especially the United States Supreme Court). Failure on the part of the Obama administration to pursue the government’s current position in favor of DOMA all the way to the Supreme Court could lead to a situation, not unlike that once seen in the cases involving the old Widow’s Penalty in an immigration context, where same sex marriage is ruled legal in, say, the Second Circuit, but might not be legalized across the United States if the Attorney General’s office refuses to request certiorari from the United States Supreme Court and simply opts to accept the 2nd Circuit’s ruling.

At the same time, the administration is not actively involved in efforts to discourage recognition of same sex marriages. From a political standpoint, the President’s apparent decision to discontinue pursuit of such cases is rather shrewd in that, as noted in the last sentence of the paragraph cited above, it allows the administration to avoid something of a “political hot potato” without actually doing anything that might offend those arrayed against the recognition of same sex marriage. Meanwhile, as a practical matter, the administration’s decision changes nothing about the current state of affairs with regard to same sex marriage. In fact, if the administration refuses to appeal such cases to the Supreme Court, they would effectively close off one of the two avenues by which DOMA could be overturned (the other being outright repeal by the US Congress). The Defense of Marriage Act remains “on the books” and therefore continues to be an impediment to Federal recognition of same sex marriage (even those solemnized and legalized by the States).

From this blogger’s perspective, the administration appears to be attempting to make efforts in support of the LGBT community on the issue of same sex marriage, but in reality the two branches of government that can truly make a change to the current Federal policy on same sex marriage are the legislative branch of government and the judiciary. At present, two significant cases are pending in the judicial system. One case in California attacks DOMA from more of a civil right’s perspective while the Massachusetts Federal District Court found DOMA unconstitutional based upon, among other things, an analysis of that State’s (or more accurately: Commonwealth’s) inherent right to solemnize and legalize marriages within their jurisdiction. To quote directly from the opinion in the Massachusetts case:

State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies. And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.

Many analyze this issue from the perspective of the Equal Protection Clause of the United States Constitution. There is a very valid argument that discriminating against same sex couples due to their gender/sexual orientation is a violation of Equal Protection. However, the argument in favor of the States’ inherent rights to make rules and regulations regarding marriages within their jurisdiction is a potent argument which should not be overlooked. Equal Rights for the LGBT community is a Civil Rights matter, but where 6 Sovereign States and the District of Columbia have taken the initiative and allowed same sex unions it begs the question: why is the Federal government contravening clear State policy on matters that have traditionally been within the exclusive bailiwick of the States?

This blogger has repeatedly written postings analyzing the issue of same sex marriage from the perspective of States’ Rights as well as Full Faith and Credit Clause of the United States Constitution. What is the most interesting aspect of this issue from the blogger’s perspective is the fact that the more socially conservative wing of the Supreme Sourt could end up voting in favor a same sex marriage based upon a States’ Rights line of thought. To quote directly from the dissenting opinion written by Justice Scalia in the Lawrence v. Texas case (which both the Chief Justice of the United States Supreme Court and Justice Thomas joined):

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

All of the Justices noted above dissented in the Lawrence opinion based upon the reasoning that the States’ retain the right to regulate homosexual conduct within their jurisdiction. The Court itself went the other way in that decision, but the above citation from the dissent is important because it shows that those Justices might rule favorably upon an issue involving Federal recognition of same sex marriage if the underlying facts were to show that the State sovereign had duly recognized such unions pursuant to their aforementioned “police powers” noted in the Massachusetts case cited above.

As of yet, these issues remain to be resolved, but one thing is clear: the political winds are changing with regard to LGBT rights. However, said rights have yet to be fully secured and until such time as they are advocates for equal marriage rights should continue to monitor this issue.

Tags: Barack Obama, Defense of Marriage Act, DOMA, Eric Holder, Full Faith and Credit, Full Faith and Credit Clause, LGBT, Same Sex Marriage, uafa, Uniting American Families Act
Posted in lgbt immigration, News, same sex visa, States' Rights, US Constitution | No Comments »