Out of all the harrowing storylines in journalist Jeremy Scahill's new film Dirty Wars, the one about Abdulelah Haider Shaye best spotlights the U.S. government's new assault against press freedom.
Shaye is the Yemeni journalist who in 2009 exposed his government's coverup of a U.S. missile strike that, according to McClatchy’s newswire, ended up killing "dozens of civilians, including 14 women and 21 children." McClatchy notes that for the supposed crime of committing journalism, Shaye was sentenced to five years in prison following a trial that "was widely condemned as a sham" by watchdog groups and experts who noted that the prosecution did not "offer any substantive evidence to support [its] charges."
What, you might ask, does this have to do with the American government's attitude toward press freedom? That's where Scahill's movie comes in. As the film shows, when international pressure moved the Yemeni government to finally consider pardoning Shaye, President Obama personally intervened, using a phone call with Yemen's leader to halt the journalist's release.
Had this been an isolated incident, it might be easy to write off. But the president's move to criminalize the reporting of inconvenient facts is sadly emblematic of his administration's larger war against journalism. And, mind you, the word "war" is no overstatement.
As New York Times media correspondent David Carr put it: "If you add up the pulling of news organization phone records (The Associated Press), the tracking of individual reporters (Fox News), and the effort by the current administration to go after sources (seven instances and counting in which a government official has been criminally charged with leaking classified information to the news media), suggesting that there is a war on the press is less hyperbole than simple math."
In this unprecedented global war, President Obama has been backed by the combined power of Justice Department prosecutors, FBI surveillance agents, State Department diplomats and, perhaps most troubling of all, a cadre of high-profile Benedict Arnolds within the media itself.
One of them is Meet the Press host David Gregory, who, after saying journalist Glenn Greenwald "aided and abetted" NSA whistleblower Edward Snowden, demanded to know of the reporter: "Why shouldn’t you be charged with a crime?" On the same Meet the Press program, NBC's Chuck Todd didn't want to know whether the NSA's surveillance is illegal, but instead demanded to know "how much was (Greenwald) involved in the plot" to expose the NSA's potential crimes. They were subsequently followed up by New York Times business reporter Andrew Ross Sorkin, who, after years of writing hagiography that helped Wall Streeters avoid prosecution, called for Greenwald's arrest.
Not surprisingly, the result of all this is a culture of fear. As the CEO of the Associated Press recently said, there has been a "chilling effect on newsgathering" thanks to an assault which seems "tailor-made to comfort authoritarian regimes that want to suppress their own news media."
By definition, the consequences of that "chilling effect" will be difficult to see - stories never reported, facts never unearthed and whistles never blown. In cases like Shaye's, there will also be journalists not released from prison.
No doubt, the resulting news vacuum is exactly what the Obama administration wants. After all, even if the White House's version of events is wildly inaccurate, deliberately misleading or completely untrue, such a vacuum allows the official story to become the only story.
That kind of information monopoly is great for the president, and it is perfectly acceptable to the courtiers and glorified television actors in the Washington press corps who masquerade as real journalists. But it is quite the opposite for a world that desperately needs more independent reporting and assumption-challenging journalism, not less.
Made in Detroit, owned by the Koch Brothers and burned in Michigan.
Much has been written recently about the mysterious black piles that appeared in one day in November 2012 on the banks of the Detroit River, not far from the Motor City’s downtown district, right next to the Ambassador Bridge – the busiest international crossing in North America. These huge stockpiles of petroleum coke, the byproduct of refining tar sands oil at the Marathon refinery in Southwest Detroit, are owned by Koch Carbon, a company run by the brothers Charles and David Koch.
Debate about possible health and environmental concerns, as well as permit and storage issues have been widely reported in the press both in the US and across the river in Windsor, Canada. Citizen and environmental groups are calling for action, while US Congressman Gary Peters (D-Mich) introduced the Petroleum Transparency and Public Health Study Act in Washington on June 6, 2013 that calls for an investigation into the piles and seeks information on how Michigan residents are affected by them.
This series of photographs takes a closer look at the people the petroleum coke piles are impacting, the areas around the stockpiles and where it is being produced.
McKenzie Duke looks out the window onto the three story piles of petroleum coke accumulating across the street from the building she lives in. Duke, an attorney and counselor in Detroit, moved into The Hudson lofts building on Fort street in August 2012. In November that same year, piles of petroleum coke, the byproduct of refining tar sands crude from Alberta, appeared and started growing across the street. During the past 6-8 weeks since the weather has been warmer, she has had her windows open and says she has been feeling poorly. Her face has broken out in a severe rash and her doctor has been unable to find out what could be causing it.
Piles of petroleum coke, or pet coke, stored close to the city center along the Detroit River just east of the Ambassador Bridge, the busiest international crossing in North America. The material is produced at the Marathon Petroleum refinery in Southwest Detroit and has been purchased by Koch Carbon, a company run by the brothers David and Charles Koch. Detroit Bulk Storage is managing the stockpiles on industrial property leased from Ambassador Bridge owner Matty Moroun, with transportation from the refinery provided by Savage Industries of Melvindale, Michigan.
In response to questions about storage along the river, Paul Baltzer Director of Communication for Koch Companies wrote in an email statement, “Koch Carbon owns the petroleum coke currently being stored and shipped from a facility operated by Detroit Bulk Storage. Under our contract, the material is to be stored and handled in a safe and compliant manner, in accordance with all applicable city, state and federal requirements.”
With additional concerns about permits being granted for the storage of this type of material along the river, Daniel Cherrin, spokesperson for Detroit Bulk Storage said in a written statement, “An application for a permit to store the pet coke in its current location has been submitted to the City of Detroit for review. A variance has also been requested. Detroit Bulk continues to work with government officials, ensuring full compliance.”
With local residents, business owners and Canadians across the river in Windsor, concerned about potential and environmental risks resulting from the uncovered stockpiles, U.S. Congress man Gary Peters (D-Mich) holds a press conference on May 28th, 2013 to raise new concerns about pet coke stored along the river.
With the black coal-like mounds visible behind him, Peters told reporters, ”This material is basically dirtier than the dirtiest coal.” He added, “Michiganders deserve answers for why pet coke is allowed to be stored in open air, near the Detroit River and our community, and whether this is being stored with proper permits.” The following week Peters introduced the Petroleum Transparency and Public Health Study Act in Washington.
Fishermen on the Detroit River troll by Koch Carbon’s mountains of pet coke on an early Sunday morning. When asked, many who fish the river say they are not concerned about potential hazards like runoff or dust from the piles on them, the fish in the river or the Great Lakes watershed. The city’s much-photographed abandoned train station, Michigan Central Station, sits only a few blocks away, while storm drains that run under the site can be seen running into the river.
Petroleum coke resembles large grains of sand and is slightly sticky to the touch. Its high heat and low ash content make it attractive for burning in coal-fired power plants but it is high in sulfur thus, to comply with current North American emissions standards, some form of sulfur capture is required.
Media continue to shy-away from reporting petroleum coke that is churning out of the Marathon refinery in SW Detroit is in fact being burned at the DTE Monroe coal plant just downriver from the piles.
Current news reports have stated that pet coke from the Marathon refinery is being sold mostly for use in overseas markets like China and India where it will be burned as fuel. However, DTE Energy spokesperson Randi Berris has confirmed that the power company did use pet coke from the Detroit refinery in tests at their Monroe coal plant downriver in February and March of this year.
The Michigan Department of Natural Resources and Environment granted DTE an air permit in late 2010, just before new stricter federal regulations came into effect to burn the material. The permit allows DTE to burn 10-12% pet coke in its fuel mix at the facility according to Berris.
Randi Berris, spokesperson for DTE Energy confirmed in a phone conversation that the plant has burned petroleum coke during tests in August 2012, February and March 2013. A total of 13,500 tons of pet coke was used over the three months. She said the Marathon refinery in SW Detroit supplied the pet coke for the February and March tests, with 500 tons – 10 truck-loads – coming directly from the controversial piles along the river upstream in Detroit. Pet coke for the August 2012 tests came from Louisiana according to Berris.
She added that with the controversy surrounding the Koch-owned stockpiles along the Detroit river, DTE decided against getting its supply from that location in the future because they, as she put it, “want to be good corporate citizens.” She said that if DTE decides to burn petroleum coke in the future, and they choose the Marathon refinery to get it from, they will secure supplies directly from the refinery, not an outside supplier.
The petroleum coke stored along the river is produced here at the Marathon Petroleum refinery in Southwest Detroit. Located in an economically distressed area of the city, home to the most polluted ZIP code – 48217 – in Michigan, Marathon put $2.2 billion dollars into refitting and expanding the refinery to handle the large flow of tar sands crude coming from Alberta transported via the Enbridge pipeline.
This expansion has encroached even further on the already crumbling neighborhood of Oakwood Heights bordering it. Marathon has offered buyouts to some homeowners so they can relocate in effort to create a ‘buffer zone’ around the refinery, while holding out on others.
Sherry Griswold has lived here for over 20 years. The expansion of the refinery has not only brought the section that produces the pet coke right up to the boarder of her lot, she says it has created a nightmare of explosions and chemical releases that have severely damaged her health.
According to Sherry, a recent incident on May 21, 2013, exposed her to an overwhelming dose of chemicals, “I walked outside and the whole ground was shaking.” She described. “I called on them finally at seven o’clock, it started at one, I couldn’t handle it no more, I couldn’t handle the noise, I had nowhere to go.”
She called Marathon and they shut it down immediately. “That’s when they gassed me through the front window,” she said.
The following morning she woke up smelling gas with her skin and eyes burning. Her doctor advised her to get to the Emergency Room where they x-rayed her lungs to check for inhalation of chemicals and treated burns to her arms and face.
Sherry added that on May 29, her doctor informed her during a check-up that tests have shown her brain has been injured from exposure to chemicals and that he has referred her to The Michigan Institute for Neurological Disorders, MIND for treatment.
Rhonda Anderson (left), Organizing Representative for the Sierra Club’s Environmental Justice Program, talks with Sherry during a recent visit to Sherry’s home. Rhonda has been helping her since 2010 in her fight against Marathon refinery.
Since Governor Rick Snyder has been in office Rhonda feels nothing with regards to environmental justice has been done for citizens of the community. Speaking on industry and environmental justice she says, “They run, they can’t stand it, cause they think it’s gonna cost them some money.”
“But then what’s the cost to the community? Whose cost is the most important?” She adds, “Right now, residents are on the losing end.”
Sherry keeps careful track of the incidents she witnesses in her home coming from the refinery next door and each call she makes to report it. This is her list from May detailing dates, times and incident numbers given to her by Marathon.
The Marathon refinery can be seen from just about every angle in Sherry’s neighborhood. Rhonda Anderson says that communities like these are the sacrifice zones. When addressing environmental justice, she first looks at communities of color, and low income communities because this is where industry most often sets up shop.
“This is what’s happening to Sherry, this is what’s happening to this entire community,” Rhonda explains.
Marathon Petroleum has purchased and demolished a number of homes in the neighborhood bordering the refinery, offering buyouts for some home owners and renters, to create a ‘buffer zone’ around the facility.
Some residents here have hired real estate agents to help sell their homes instead of taking a buyout, hoping for a better offer from Marathon. Others like Sherry Griswold and her friend and landlord Tom Gutenschwager, who owns a welding business across the street from her, were offered nothing even though they are the closest property to the refinery.
“They’re trying to smoke us out,” Sherry says.
The neighborhood next to the refinery has a surreal air about it. Buildings purchased by Marathon are boarded up and locked with TV satellite dishes and Christmas lights still attached. These sit next to vacant lots and homes with families living in them while other houses across the street are burned-out and strewn with litter.
Just down the street from Sherry Griswold, Robert Parmenter sits on his front porch. He has lived in the neighborhood for 20 years and rents the place. Marathon did not offer him a buyout to leave. “I’m ready to go,” he says. “As soon as [the landlord] sells the house, I’d be out the same day.”
He adds, “This neighborhood ain’t no good man,” and says Marathon has ruined the entire area. When asked about any health problems he has from living next to the refinery, he replies, “You mean except breathing?”
Residential neighborhoods surround the Marathon refinery. These homes in Melvindale, on the other side of the refinery from Oakwood Heights also back up to the facility.
Sam Rosado has lived in the industrial area of Southwest Detroit for 16 years. Fishing on the shore across from the piles of petroleum coke and coal on Zug Island, not far from the Marathon refinery and home to United States Steel, he says he won’t eat the fish he catches and does it just for fun.
Casting out his line he adds, “I pulled some fish out of here and they don’t look right.”
Sam says of his catch across from Zug Island, “If I get something big enough I give it away to some people I know.”
Back upriver, in a fishing area next to the controversial stockpiles of pet coke owned by Koch Carbon, Lawrence Jackson pulls a Silver Bass out of the river. He doesn’t worry too much about contamination he says.
The General Motors Renaissance Center, world headquarters of the Detroit auto giant, looms in the background of the stockpiles of pet coke along the river. According to Detroit Bulk Storage, the company in charge of storing and managing the material at this site, six acres of asphalt has been put down under the piles to direct any runoff water away from the Detroit River and towards the center of the pad in compliance with DEQ guidelines. They claim the asphalt also provides an impermeable barrier between the pet coke and the ground soil.
A vacuum and water truck are stationed at the site and according to Detroit Bulk Storage, used to help keep dust levels down. In a statement from the company, spokesperson Daniel Cherrin writes, “Detroit Bulk continuously sprays the roadways and the active piles of pet coke with water from a 3000 gallon tanker truck to minimize fugitive dust in the air, water or land around the property.”
Cherrin adds, “Detroit Bulk sprays the piles with an encrusting agent similar to an epoxy seal on non-active piles to trap fugitive dust and the absence of a traditional canvas or tarp on the piles, does not indicate that the piles have not been sealed in order to prevent the emission of dust particles. Detroit Bulk has a vacuum truck on the property which is used as needed to conform to the Fugitive Dust Plan submitted to the DEQ.”
From the picnic tables outside the Green Dot Stables restaurant on West Lafayette, the black piles of pet coke along the river are clearly visible and only a block away. At first, owner Jacques Driscoll was a bit disappointed that the three story piles blocked his customers’ international view across the river to Canada, but later began to be concerned about other issues that might arise from the uncovered piles being stored so close.
Jacques is now worried about the pet coke and what storing it out in the open might do to him, his family, his employees and his customers. He and his wife live close by and he wishes someone would come out with a definitive answer if it is harmful or not.
“I don’t want to be a whistleblower or anything like that, I just want to know,” he says. “Not knowing is the hardest part.”
“Let’s say that it is fine, but it has a minimal health affect, what if I live here for the next 30 years, I’m still exposed to it. What about the other people that live here? Do you want to have that in the back of your mind every time you open a window?”
Jacques started the Green Dot Stables restaurant with his wife Christine just over a year ago. They are part of a growing number of young entrepreneurs who have set up business in Detroit not only take advantage of opportunity as the city struggles to recover from economic crisis, but to contribute its comeback and be a part of the community.
Talking about the uncovered pet coke sitting just a block away he says, “It’s pretty ballsy to put something on the river knowing that it’s bad, if it truly is bad, and try to get away with it.”
A Canadian view of the stockpiles along the river the city shares with Detroit. Here in Windsor, Canadians not only look out onto the pet coke piles each day but complain of the large amounts of dust and particulate matter in the air that blows over the river onto their city. Many are sounding alarm bells about the potential health and environmental issues of storing the piles out in the open.
Dan Germain looks out the eighth floor windows of the high-rise condo he shares with his wife Ruth and their daughter across the river from Detroit in Windsor. The family relocated from just outside Toronto three years ago and after moving into their new condominium at Portofino Riverside Towers along the river, were impressed with the view they had of the Detroit skyline.
But that changed after the piles of Petroleum coke appeared in November 2012. Dan’s wife, Ruth Gemain, wrote letters about the pet coke piles to the city and provincial governments but she says, “Ontario has been quiet about it.”
Fed up with the dust, worried about potential health risks, and tired of waiting for the government to step in, Ruth started the Facebook page, Petroleum Coke Awareness Detroit, in March 2013 to raise awareness about the issue. With little information about the production and use of petroleum coke, she started researching, connecting with others and putting up her findings on the page.
The Windsor Star was one of the first newspapers to write about the piles she says, well before the Detroit Press ever took notice. She cannot understand why there is no US law mandating the piles be covered.
“We shouldn’t be reinventing the wheel here,” she says, “since one already exists in California that regulates that state’s petroleum coke storage.” She adds that people across the river in Detroit don’t realize, “What impacts you, impacts us.”
People enjoy a Sunday morning fishing on the Windsor shore. Across the river, not far from the Ambassador Bridge and the controversial piles of pet coke, Detroit Bulk Storage manages another site, seen here, at the Nicholson Docks where the material is also being stored and loaded onto freighters.
Back in Detroit, the debate heats up over the pet coke piles and with the Petroleum Transparency and Public Health Study Act introduced in Washington to deal with the issue, local residents and businesses on both sides of the river are waiting for answers.
Daniel Cherrin, spokesperson from Detroit Bulk Storage welcomes the opportunity to talk with others about the precautions being taken to ensure the health and safety of the community, “With the shipping season underway, empty vessels will appear at the docks every two weeks or sooner to be loaded with pet coke which will result in smaller stockpiles along the river. The community concerns about their health and safety while the petroleum coke may be stockpiled outside awaiting transport are understandable.”
Windsor resident Ruth Germain puts it this way, referring to the entire process of extracting, transporting, refining and burning crude from the Alberta oil sands, “[People] need to realize it’s not just the piles and there is much more to it.”
Interesting to watch, even without much explanation.
Hello all,
A very quick post today as we would like to share with you a short video.
Keeping up with the boss when cutting can be a challenge, so I think he was impressed with my speed and accuracy having filmed my latest cut…. not to worry though, this is not in real time!
Credit must be mentioned for this fantastic sound track by JD McPherson – ‘North Side Gal’.
Newsflash: Scalia is an asshole who throws tantrums when he doesn't get what he wants.
Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School.
Today’s decisions striking down the key provision of DOMA and dismissing for want of standing the appeal from the district court’s invalidation of California’s Prop 8 were not at all surprising. Many of us predicted both outcomes, although there were some who imagined that Justice Kennedy would rely even more heavily on a federalism rationale than he ended up doing. His conclusion for the Court – joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan – in United States v. Windsor that DOMA deprived gay couples of equal liberty and basic dignity without anything resembling a sufficient justification was a welcome and entirely justifiable one. And the conclusion of Chief Justice Roberts’ majority opinion in Hollingsworth v. Perry – joined by the unlikely coalition of Justices Scalia, Ginsburg, Breyer, and Kagan – that the private group seeking to appeal from the district court’s invalidation of California’s Prop 8 lacked standing to do so, while anything but legally obvious, was at least defensible – and again quite predictable.
The pair of decisions taken together left the most contentious questions about same-sex marriage for the political process to continue grappling with – postponing to another day, when the generational wave that is moving this question to an inevitable conclusion has proceeded still further, the Court’s next encounter with the questions of equal human liberty and dignity that lie at its constitutional core. Both decisions, handed down by very different 5-4 majorities, seem to me worthy of celebration. I focus here only on the Court’s invalidation of Section 3 of DOMA in United States v. Windsor.
That invalidation of Section 3 followed directly and indeed easily from the Court’s decision a decade ago today in Lawrence v. Texas. Joshua Matz and I argued as much in the Maryland Law Review last October.
Indeed, if anything, today’s invalidation was over-determined, given the added federalism spin that propelled it. For Congress to carve same-sex couples and only such couples out of the federal government’s nearly universal deference to state definitions of marriage could not withstand anything like the meaningful judicial scrutiny that all but the most garden-variety exercises in line-drawing – exercises lacking even a whif of insult to vulnerable groups or to basic American traditions – demand.
But Justice Scalia – in a portion of his dissent that Chief Justice Roberts conspicuously declined to join – couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms. I write this comment principally to highlight the extraordinary character of this particularly vitriolic and internally inconsistent dissent.
Having disagreed with the majority about the existence of a live case or controversy within the meaning of Article III (inasmuch as the United States did not appeal the lower court’s invalidation of the relevant federal statute), Justice Scalia went out of his way to opine at great length and with his characteristic vigor about how the Court should have decided the very controversy that he says wasn’t really before it, offering his view of the merits without the modesty that he insisted was the hallmark of proper adjudication. To accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah.
Justice Scalia accused the majority of “fooling . . . readers . . . into thinking that this is a federalism opinion” while in the end relying only on the Due Process Clause of the Fifth Amendment as a textual source of decision. But Justice Scalia didn’t so much as consider the possibility, one embraced not just by today’s majority but by no less a jurist than Michael Boudin as Chief Judge of the First Circuit in his earlier decision invalidating DOMA’s Section 3 on very similar grounds, that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3.
Justice Scalia insisted that principles of equality and of substantive liberty implicit in the Fifth Amendment’s Due Process Clause were not truly the textual basis of today’s majority’s ruling on the merits. But his only basis for that sly suggestion was his supposition that the majority was hiding the ball (hiding it from whom?) by declining to “utter[] the dread words ‘substantive due process.’” That the majority was relying not on principles akin to those that led to Lochner and its progeny but, rather, on what the majority claimed – namely, a combination of equal protection principles and precepts of federalism – a combination textually at home in adjudication under the Due Process Clause of the Fifth Amendment, cannot have escaped Justice Scalia’s keen mind. So they must simply have escaped his word processor, mind notwithstanding.
Justice Scalia faulted the majority with having inexcusably accused the Congress that enacted DOMA and the President that signed it of having “hateful hearts” when the majority in truth did no such thing. To say that only anti-gay animus, conscious or otherwise, could coherently account for a measure like Section 3 is not to accuse those who enacted or signed the measure of acting out of homophobic animus.
Justice Scalia snarkily said that his fellow Justices showed “real cheek” when they assured the nation that the constitutionality of state laws banning same-sex marriage was not before the Court in this case when, in Scalia’s view, those state laws could not be upheld consistent with the premises of Windsor. But surely Justice Scalia recognizes that the implications of carefully cabined precedents like Windsor is always up for debate, invariably influenced by the spirit of the times in which later stages of that debate reach the Court.
Justice Scalia invited “State and lower federal courts” to “take the Court at its word and distinguish away” when others urge that laws barring same-sex marriage at the state level are distinguishable from the DOMA provision that the Court struck down. But, at the very same time, the Justice insisted that any such efforts at distinction would fly in the face of the legal principles underlying today’s decision in Windsor and concluded that, “[a]s far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
Where to begin with that tidbit? For starters, calling on state and lower federal courts to treat the Windsor opinion as no broader than it claimed to be even as one charges the Court that penned Windsor with charting an unbreakable path to full same-sex-marriage rights is, at the very least, an exercise in jurisprudential cynicism. Either Justice Scalia expects and wants tribunals beneath his pay grade to shut their eyes to what he regards as the inescapable implications of Supreme Court precedents, or he anticipates that they will, and suggests that they should, follow the logic of those precedents where that logic leads notwithstanding the Court’s suggestions that the issue remains entirely open. Either way, he is contradicting himself.
Beyond that troublesome cynicism, there is the transparently calculated blurring of the distinction between analysis of where the arc of the law logically points and prediction of where that arc will in fact land. It’s hard not to hear in Scalia’s remarks today an echo of the prediction he made in his equally heated dissent from Lawrence ten years ago – that, having struck down the anti-sodomy law of Texas on the basis that its 2003 its opinion invoked, the Court could not logically stop short of invalidating as an insult to equal dignity and liberty any state law limiting marriage to same-sex couples. When Justice Scalia made that 2003 prediction, he doubtless recognized that it would be quoted back at him in future challenges to such state laws, at which point he doubtless intended to underscore the Lawrence majority’s own insistence that it was not yet resolving the validity of such challenges.
So too today. In predicting that the opinion joined by the five Justices comprising today’s Windsor majority would invariably lead to the invalidation of state efforts to limit lawful marriage to opposite-sex couples, Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist, one who often displays a principled side that even those who dislike his results would be hard-pressed not to admire.
The bait-and-switch of course arises out of the inescapable reality, one that Scalia appreciates as well as anyone, that what the Supreme Court does has always been and must remain a delicate blend of principle and politics. Justice Scalia knows all too well that the decision of whether the time is ripe for federal judges to move forward on a matter as politically, culturally, and religiously explosive as same-sex marriage is impossible for any judge to make as a matter of analytical reason alone. So to say that all we need do is listen and wait for the other shoe to drop is to falsify what Justice Scalia recognizes the world is all about. In the fullness of time, when the nationwide validity of a statewide ban akin to Proposition 8 reaches the Court without the standing problems that enabled the Court to punt on this occasion, if Justice Scalia is still a member of that tribunal, we can all be sure that he will not treat the Windsor majority opinion as controlling precedent for striking down such a ban. To suggest otherwise now is worse than cynical. It is flatly false. And it gives the wrong signal to lower courts, both state and federal. It suggests to them that they ought to feel free to track what the Supreme Court says rather than to fathom, and then do their best to follow, the logic of what it does.
Suzanne Goldberg is a Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor.
The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws. Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.
Neither decision is surprising but both are gratifying. And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people. Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment. Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”
Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”
Yet reaching this conclusion was not a constitutional stretch. Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.
Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage. In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.
But if the change has come quickly in constitutional and political terms, it has been a long stretch of years for same-sex married couples who have lived under DOMA’s discriminatory regime. And it has been a full decade since marriage rights were first recognized in Massachusetts, which in turn enabled DOMA’s double standard for the marriages of same- and different-sex couples to have its first practical application. The Court’s opinion makes these injuries plain.
Of the thousand-plus marriage rights that DOMA denied to same-sex married couples, Justice Kennedy’s opinion highlights some of the law’s most profound harms –as well as harms that have been especially vexing to same-sex couples (and their lawyers and accountants) – including DOMA’s denial of healthcare benefits, bankruptcy protections, and joint tax filing. The majority opinion also sets out the obligations that the federal government imposes on married couples but, under DOMA, did not apply to same-sex couples – including federal ethics and government integrity rules.
And in one small but notable snippet, the Court mentions that DOMA’s injuries extend to prohibiting same-sex married couples being buried together in veterans’ cemeteries. Although many readers probably skimmed right through that part of the opinion, it is worth remembering that until September 2011, when Congress repealed Don’t Ask Don’t Tell, gay and lesbian individuals could not even serve openly in the nation’s military.
Following on Justice Kennedy’s concern about the children of same-sex couples, which he voiced during the oral argument, the Court’s opinion also flags the specific financial injuries that DOMA causes to married same-sex couples with kids, including those related to health care and survivors’ benefits.
All of this is important, of course, to Justice Kennedy’s reasoning. But what is most striking about the opinion, again, is the direct, clear way that the Court seems to understand why DOMA is such an egregious violation of the constitution’s equality guarantee under the Fifth Amendment. Words like “demean,” “degrade,” and “humiliation” do not appear often in Supreme Court opinions in reference to unconstitutional laws. Yet the Windsor decision is replete with those words and more. Indeed, the tone of the opinion almost suggests a sense of offense on the Court’s part: “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.” And again, DOMA “imposes a disability . . . by refusing to acknowledge a status the State finds to be dignified and proper.” Still more: “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
The immediate impact of DOMA’s invalidation will be powerful. For same-sex couples who are legally married and live in one of the 13 states that recognize their marriages (now including California; more on that in a moment), full marriage equality will be theirs to enjoy on the same-terms as different-sex couples.
This shift will also bring to the end a fraught political battle in another field – immigration –where the Senate recently, and dramatically, refused to include same-sex couples in its immigration reform bill. Although immigration rights were not highlighted on the Court’s list of DOMA’s harms, this issue has been particularly damaging and painful to same-sex binational couples, who have until now been treated as legal strangers by federal immigration law. Although the Obama administration recently took steps to limit deportations in which a couple would be torn apart, nearly all same-sex binational couples have been living in a painful legal limbo, separated by national borders. With DOMA’s demise, this, too, should end immediately.
But DOMA’s invalidation does not entirely end the problem of marriage discrimination against same-sex couples. Instead, its legal impact is at the federal level, and even that is likely to be uneven, reflecting the country’s complex legal patchwork for same-sex couples. For legally married same-sex couples outside those states, who also want their marriages recognized by the federal government, a new wave of challenges begins.
On this point, the Court also made an important observation. Although recognizing that the federal tradition is to defer to the states, the Court also made clear that the federal government can “regulate the meaning of marriage in order to further federal policy.”
Given the Obama administration’s opposition to DOMA, this statement will certainly be invoked by advocates to push the administration to move quickly in doing all that it can to recognize same-sex couples’ marriages, even in states that do not recognize those marriages. Some of this change can come quickly through policy change and executive order. Other moves to equalize marriage rights at the federal level may need to come via agency regulation, which requires notice and comment. Indeed, shortly after the decision came down, the President issued a statement applauding the Court’s decision to strike down DOMA and stating that he has “directed the Attorney General to work with other members of my Cabinet to review all federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”
On Perry and Prop 8
By contrast to the Windsor decision, the tone of the Perry decision is straightforward and the content is almost strictly doctrinal. It is also absolutely correct in my view, and adheres to reasoning my colleague Henry Monaghan and I presented in an amicus brief (and to similar reasoning offered by former Solicitor General Walter Dellinger).
Consistent with its other Article III standing jurisprudence, the Court concludes that private parties cannot step in to defend the constitutionality of a state law when a state government has opted not to defend. As the Court noted, this had been an open question until now; though earlier precedent cast strong doubt on a private party’s ability to substitute itself for the government to defend a law, Perry is the first case to present that issue squarely.
Two aspects of the opinion – or rather, what is not in the opinion – warrant special attention. First, had the Court gone the other way and found standing for Proposition 8’s sponsors, as the four dissenters would have ruled, Article III would now be beset by a gaping hole. Allowing private individuals to invoke federal court jurisdiction when they disagree with a government’s decision not to defend a law would have vitiated the long-settled Article III requirement that federal court litigants have a direct and particularized interest in the case they pursue.
And this, in turn, would have created enormous political problems. In the Perry case, for example, Proposition 8’s sponsors – while claiming to be acting in the California government’s stead – were making arguments condemning gay parents that directly contradicted California law and policy.
The second notable feature of the opinion comes back to tone. An alternate opinion might have regretfully expressed that Article III denied standing and offered support for Proposition 8’s sponsors in the political or state court realm. This alternate opinion might have colored its opening paragraph, not by Chief Justice Roberts’s observation about the “active political debate over whether same-sex couples should be allowed to marry,” but instead by a framing much more sympathetic to those who would deny marriage equality to same-sex couples.
But it did not. Instead, the Chief’s opinion, apart from that opening paragraph and a brief recounting of the facts, could have been written for any other case involving a voter initiative that the state did not defend. This absence of commentary on the convictions of Proposition 8’s sponsors, as much as the more dramatic language in the Windsor opinion, underscores the sea change in the Court’s approach to gay rights claims.
In short, the outcomes here are both consistent with prevailing jurisprudence, and both are likely to be invoked in the future as marriage litigation continues into its next phase. More importantly, perhaps, the Court’s effusive, heartfelt invalidation of DOMA is consistent with the prevailing trend in the nation toward including gay people not only in marriage but also in the country’s greater promise of equality for all.
Four years ago, in a case called Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court reviewed a challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. As I explained in an earlier post, that portion of the Act was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures – both major changes and even for something as seemingly innocuous as moving a polling place across the street. In that case, the Court ultimately dodged the constitutional question, handing the utility district a victory on another ground. But at the same time, the Court fired off a cautionary shot to Congress, admonishing it that “[t]hings have changed in the South,” where most of the state and local governments that have to comply with the preclearance requirements are located, and that the burdens imposed by the preclearance requirements “must be justified by current needs.”
Chief Justice Roberts’ opinion in Voting Rights Act, Section 5 (Art Lien)
Today’s decision in Shelby County v. Holder, a new challenge to the preclearance requirements, boils down to a new message to Congress: we warned you, you didn’t listen, and now it’s your problem to fix. The Court did not invalidate the actual preclearance provision of the statute. But it did something just as significant: it struck down Section 4 of the Act, which contains the formula that is used to identify the state and local governments that have to comply with the preclearance requirements. The upshot is that although the preclearance requirement survives, none of those jurisdictions have to comply with it unless and until Congress can enact a new formula to determine whom it covers – a prospect that, given the current state of gridlock in Congress, might not happen for a while or even forever. (It is also possible that the federal Department of Justice could bring new lawsuits under a separate provision of the Act to extend the preclearance provisions to new jurisdictions, but today’s decision could make it much harder for the government to win those suits too.)
The Chief Justice delivered the opinion of the Court, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The Court began by acknowledging that when the Voting Rights Act was enacted, it “employed extraordinary measures” – in the form of restrictions on the independence of the covered states – to combat the “extraordinary problem” of widespread voter discrimination. In 1966, the Court explained, these restrictions, which were intended to be temporary, were justified, and the formula used to determine who should be covered “made sense” then.
But today, fifty years later? Not so much. In the Court’s eyes, “things have changed dramatically.” When judged by a variety of measures – such as voter registration, voter turnout, and the number of African Americans elected to office — conditions have improved significantly in the states that are covered by the preclearance requirements. The Court agrees that these changes “are in large part because of the Voting Rights Act”; despite those improvements, the Court complains, the formula that determines who must comply with the preclearance requirement is “based on decades-old data” and practices – such as literacy tests – that were long ago abandoned. Because it isn’t fair for Congress to “rely simply on the past” to single out a few state and local governments for unequal treatment “based on 40-year-old facts having no logical relationship to the present day,” the coverage formula cannot stand.
The last section of the Court’s opinion is the judicial version of throwing the Voting Rights Act ball back across First Street N.E. to Congress. Emphasizing that invalidating a federal law is one of its most serious responsibilities, and that it “do[es] not do so lightly,” the Court makes clear that in its view, only Congress is to blame here. Four years ago, it warned Congress that the constitutionality of the law was in doubt; “Congress could have updated the coverage formula” then, but it failed to do so. “Its failure to act,” the Court explains, “leaves us today with no choice but to declare [the coverage formula] unconstitutional.”
Continuing a pattern that we have seen in several other cases this week, Justice Ruth Bader Ginsburg filed a dissenting opinion, which was joined by Justices Breyer, Sotomayor, and Kagan. Where the majority had cited improvements in voter registration and voter turnout as support for its conclusion that the Act’s coverage formula was unconstitutional, the dissenters focus on other, more subtle discriminatory tactics, such as racial gerrymandering, that are used to dilute the impact of minority votes. Congress voted to renew the preclearance requirement and the coverage formula, the dissenting Justices argue, because it concluded – based on a “massive legislative record” – that they were still needed to head off these tactics. And given Congress’s special role in enforcing constitutional provisions prohibiting racial discrimination in voting, the dissenters would defer to that determination.
When the Court issued yesterday’s decision in Fisher v. University of Texas at Austin, civil rights groups breathed at least a qualified sigh of relief. After months of worrying that the Court might prohibit the use of affirmative action in higher education altogether, affirmative action survives – at least for now. By contrast, today’s decision was pretty much as bad as voting rights groups had feared: although the Court did not strike down the preclearance requirement, it rendered it essentially ineffective until Congress can decide who should be covered by the requirement going forward. And no one expects that to happen anytime soon.
[Disclosure: The law firm of Goldstein & Russell, P.C., in which I am a partner, was among the counsel on an amicus brief in support of the respondents in this case, but I was not involved in the case at all.]
Thank you so much to Lovehoney for hooking me up with the most hilarious sex toy I’ve ever experienced. It was honestly delightful, though perhaps not quite in the way intended ;) Buy it straight from them here (don’t forget to enter “10OHJOY” here for 10% off).
Because they are so awesome, they’ve also invited us to do a Sqweel 2 (with free lube!) give away with us!
To enter for the chance to win, “follow” them on Twitter and then comment on the page the image above takes you too, to be entered!
Rusty on the bee killing in Oregon. Appears they sprayed for aphids, for some reason. The law was definitely broken, though, and I hope the responsible parties feel the consequences.
You have probably heard by now that 25,000 bumble bees were killed last Saturday in a shopping center parking lot in Wilsonville, Oregon. The parking lot is home to 55 European linden trees which were sprayed for aphids in spite of being loaded with bumble bees. The Oregon Department of Agriculture said, “tests on bees [...]
Watch YouTube user Xraise Cornell create a homemade horizontal vortex ring generator. When a small burst of air is released into a toroidal or poloidal vortex — essentially a spinning donut of water — it shapes the air into its own ring along the water’s trajectory, creating a vortex ring or a bubble ring.
The vast, unexplored ocean is filled with wonderful and mysterious creatures. This week, we journey far offshore for a midnight drift dive with over 1,000 feet of water between us and the seafloor. The animals here are bizarre and beautiful, and little is known about their biology.
...this is not the place I would have expected such a plan to be implemented.
mariordo59Bolloré Group’s Indianapolis EV-sharing program would mimic its French ones.
Are you a fan of electric vehicles who doesn’t want to own your own car?
Get thee to Indy.
A company that operates electric-vehicle sharing programs in France is looking to expand, and its executives have settled on Indianapolis for their first American foray. Bolloré Group’s $35 million plan will provide 500 shared cars and 1,200 charging stations at 200 locations throughout Indiana’s capital. The company’s inaugural American initiative will be modeled on its French Autolib program, with sharing slated to begin next year.
The program is based around short one-way rentals, unlike some other US models which require the user to return to the vehicle where they rented it. Users pay a membership fee (daily, monthly, or annually) and receive an RFID card. When they wish to rent a vehicle they reserve a car on-line or at a dedicated car share kiosk, they unlock the car charger with their card, and then swipe the card on the windshield, which unlocks the car and allows them to drive off. The in-car GPS allows the user to reserve a parking spot with a charging station near their destination. Once they arrive, plug-in the vehicle and the transaction is complete. The user can then reserve another vehicle for their next trip, as needed. The rates for the Indianapolis service have not yet been established, but in Paris, membership costs $16 per month and a 20-minute trip costs about $4.50.
This will make you really glad you’re looking at your computer and not out the window:
That’s a supercell thunderstorm, a thunderstorm so big and powerful it can spawn tornados. The GIF was made using footage from storm chaser Mike Olbinski, who deliberately goes seeking these things out. Personally, I’m perfectly happy to just look at it on the computer, where I am safe.
Unlace your bodice, put down your bastard sword, and stop trying to genetically engineer that goat into a unicorn — it turns out all you need to experience the thrill of living in a fantasy novel is to look at this map of place name etymological origins.
Stephan Hormes and Silke PeustClick to embiggen.
Suddenly, instead of having a conference in New Orleans, you have it in New Golden One, Land of the Warriors. You’re not from Jersey — you inhabit the Isle of Spears. Your European vacation might take you on a quest through the Fire-Cleared Land to Lightstone. And of course, we all dream of a getaway to the Islands of the Monkey God* (*the one with the strong maxillaries). At least, we do now.
Stephan Hormes and Silke PeustClick to embiggen.
The Atlas of True Names is a project of cartographers Stephan Hormes and Silke Peust, and you can buy a physical map to hang on your wall and make every mundane business trip or holiday homecoming into an epic adventure.
Stephan Hormes and Silke PeustClick to embiggen. Filed under: Cities
Remember kids, color is contextual! Also, SCIENCE!
Corals, like many representatives of marine life, are known to be strikingly colourful creatures. However, understanding the nature of those colours can be tricky. The most problematic part: there's no such thing as colour outside your head. Light differs in wavelength and those differences can be picked up by various receptors in the eye. Colours, in contrast, are born in the secondary visual cortex in the brain after a lot of information is processed. The brain decides how to render the information from the retina based on the context of the whole image. In other words, there's no easy correspondence between wavelength and colour. Every photographer is familiar with this concept as part of white balance correction. See more >>
"Racetrack Playa" sounds like the screenname of an online teenager you're competing against in Need for Speed, but scientists recognize it as the name of a dried-up lake in Death Valley. For a century, scientific minds have been puzzled by a well-documented, poorly-understood phenomenon occuring at Racetrack Playa: Enormous stones, some up to 700 pounds, appear to have somehow moved themselves across the lakebed floor in random patterns, leaving a furrowed trail behind them.
No one had ever seen these "sailing stones" move, but many photographed the end result. The original thought was that the lakebed forms a thin sheet of ice on it, and that the wind then blows the rocks across it; but that theory was discounted after researchers calculated it would take wind speeds of hundreds of miles per hour to move the rocks, while the wind at the Racetrack maxes out around 90 m.p.h. And if you're wondering why they don't just strap a GoPro camera onto a rock to see what's going on, scientists returning to the site over the years have calculated that the rocks move for short periods of time, just once every three years. That's a bit longer than your battery's likely to last.
However, a fortunate collision between two of these magic rocks provided planetary scientist Ralph Lorenz with an interesting discovery:
![Just down the street from Sherry Griswold Robert Parmenter sits on his front porch. He has lived in the neighborhood for 20 years and rents the house. “I’m ready to go,” he says, “As soon as [the landlord] sells the house, I’d be out the same day.” Marathon did not offer him a buyout to leave. When asked if he has experienced any health problems from living next to the refinery, he replies, “Except breathing?” He adds that Marathon has ruined the entire area, “This neighborhood ain’t no good man.”](http://www.stillscenes.com/wp-content/uploads/2013/06/detroit_petcoke_fassinger_14.jpg)
![Back in Detroit, the debate heats up over the pet coke piles and with legislation slated to be introduced this week in Washington to deal with the issue, local residents and businesses on both sides of the river are waiting for answers. Daniel Cherrin, spokesperson from Detroit Bulk Storage welcomes the opportunity to talk with others about the precautions being taken to ensure the health and safety of the community, “With the shipping season underway, empty vessels will appear at the docks every two weeks or sooner to be loaded with pet coke which will result in smaller stockpiles along the river. The community concerns about their health and safety while the petroleum coke may be stockpiled outside awaiting transport are understandable.” Windsor resident Ruth Germain puts it this way, referring to the entire process of extracting, transporting, refining and burning crude from the Alberta oil sands, “[People] need to realize it’s not just the piles and there is much more to it.”](http://www.stillscenes.com/wp-content/uploads/2013/06/detroit_petcoke_fassinger_27.jpg)
