Speak Up to Remain Silent: An Analysis of Berghuis v. Thompkins

Anyone who's seen even one episode of a cop show on TV knows the Miranda warnings: "You have the right to remain silent. Anything you say can and will be used against you in a court of law."  And so on.  What most people don't realize is that those are simply the rights enumerated in the fifth and sixth amendments.  Police have been required to inform suspects of those rights since the Supreme Court's ruling in Miranda v. Arizona in 1966. After those warnings, a suspect can request a lawyer, or they can start talking to the police.

The ruling in Berghuis v. Thompkins, though decried by some as an abuse of suspects'/prisoners' rights, is actually a welcome clarification as to how these rights can we waived or claimed. It says that "If the accused makes an 'ambiguous or equivocal' statement or no statement, the police are not required to end the interrogation". In other words, if you want to remain silent, you must say so. Simply remaining silent is not enough to claim the right against self-incrimination, a statement something along the lines of "I'm not going to talk to the police" must be made. (Sotomayor's dissent criticized that decision, because she said police were not likely to inform suspects what words to use to invoke their right. I . . . don't think it's that hard to figure out.) This is not a decision that comes out of the blue: The Court already rules in Davis v. United States that a suspect's right to counsel must be unambiguously invoked; there is no reason to treat the right to remain to silent any differently.

The facts of the case are these: Van Chester Thompkins was arrested in 2000 for his role in a drive-by shooting in Michigan. As Lyle Denniston wrote for SCOTUSblog, "At the beginning, they warned him about his rights, and asked him to read part of the list out loud, to make sure he understood English. But he refused to sign the form, showing he understood his rights. There is a dispute about whether he ever was asked orally whether he understood the warnings." During his three hour interrogation, he was mostly silent, answering very few questions (when he did answer, it was in monosyllables). Near the end, the officers asked if Thompkins prayed to god for forgiveness for shooting the boy, and Thompkins answered "yes". That was used as his confession in court, and he was convicted. He later appealed, saying that he, by his general uncooperativeness, had invoked his right to silence. After all the state courts ruled against him, he finally won in the Sixth Circuit. Michigan appealed to the Supreme Court.

Although I don't agree that this is a sweeping re-writing or gutting of the Miranda ruling, warning, or rights, this case offered the opportunity for such re-interpretation. But the thing is, Thompkins really did himself no favors during his interrogation. As Justice Kennedy says, “If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.” Thompkins had answered some questions earlier in the interrogation, and he had refused to answer others. He could easily have not said anything.

This ruling is a welcome clarification for suspects and police officers alike. As the American Thinker wrote, "In assessing the rights and requirements of both law enforcement and the accused, the Supreme Court has applied a reasonable standard to both parties while balancing the rights of the individual with the necessity of protecting lawful interrogations." Under this decision, it will be clear what statements are and aren't admissible in Court. Miranda requires that a suspect "knowingly and intelligently" waived his rights. Well, Thompkins answered questions posed to him by the police. I can't think of any situation in which that would not be considered a waiver of the right to remain silent. Thompkins follows established precedent (the Davis case) and places responsibility on both the police and the suspect, protecting both their rights, while making it easier for the police to gain admissible confessions legally an constitutionally.

As a side note, I find it rather amusing that I, the liberal, am siding with the conservatives in this case; and Ashley, the conservative, is siding with the liberals :).

Further Reading:

• SCOTUSWiki article
• American Thinker article
• LawReader.com article
• Opinion of the Court + Justice Sotomayor's dissenting opinion (PDF)

McDonald v. Chicago: Brief for Petitioners, by Ashley

I have tried to synthesize all of our research and notes into one brief so this might be a little rough.

IN THE
Supreme Court of the United States
_________________
No. 08-1521

_________________
OTIS MCDONALD, et al., Petitioners,
v.

CITY OF CHICAGO, Respondent.
_________________
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit

_________________
PETITIONERS BRIEF

_________________

The Constitutional question in this case is whether or not the Second Amendment can be incorporated by the Fourteenth Amendment using the due process clause and the privileges and immunities clause (however, we did not argue to incorporate under this clause so I won’t be mentioning it in this brief)

I
AOur first and most prominent argument is one of substantive due process, which stems from a broader interpretation of the Fourteenth and Fifth Amendments. The Fourteenth Amendment’s due process clause states, “nor shall any State deprive any person of life, liberty, or property, without due process of the law”. Procedural due process would say that if someone is being prosecuted for a crime they must have a fair trial with jurors and they have the right to an attorney, etc. This is the more obvious meaning of the due process clause. However, substantive due process can be implied as well. This protects people’s basic substantive rights as well as their procedural ones. So using this clause you are not only making sure the government’s procedures or process of implementing the law is correct but you are also making sure that the government has justification for taking away your, “life, liberty, or property”. So, not only does the process have to be fair, but also the reasoning for having the process in the first place.

BSo, how does this relate to incorporation? Well, because of substantive due process there are certain rights that are seen as “fundamental” to “liberty” stated in the Fourteenth Amendment. Basically, these rights are seen as the “liberty” stated in the Fourteenth Amendment. Also “incorporation” doctrine can be used to apply the enumerated rights in the Bill of Rights to the states under Due Process.

CWe believe that guns are a “fundamental right” that is protected under substantive due process. It can be seen as part of the “liberty” mentioned in the Constitution. The right to a gun is already a protected right under the Constitution in the Second Amendment which states, “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” so it is already established as a “fundamental right” to have a gun (affirmed and expanded by District of Columbia v. Heller 128 S. Ct. 2783 (2008) which I will talk about later in this brief) which is clearly stated in the Constitution. Because it is a Constitutional right it can be applied to the states through the Fourteenth Amendment because of the “selective incorporation” doctrine. Also, under substantive due process, you can incorporate the Second Amendment because it is seen as a “fundamental right” that connects with the “liberty” stated in the Fourteenth amendment and cannot be taken away by the government.

DThere is also proof that the right to posses a gun was a “fundamental right” originally intended by the people writing the Fourteenth Amendment. It was stated by Senator Samuel Pomeroy when debating § 2 of the Fourteenth Amendment that these are the “indispensible safeguards of liberty”: 1) Every man should have a homestead, that is, the right to acquire and hold one, and the right to be safe and protected in that citadel of his love, 2) He should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete; and 3) He should have the ballot [46]”.

EThe before-mentioned statement proves that part of the original intent of the Fourteenth Amendment was to allow blacks to posses firearms. So, why would they argue it is a fundamental right for black people if it wasn’t a fundamental right for everyone? The Fourteenth Amendment wanted to expand the rights of the newly freed slaves so why wouldn’t they talk about expanding a right if it wasn’t a right? This shows us that the people writing the Fourteenth Amendment thought the right to posses a firearm was a “fundamental right” for all people. Therefore, the right to bear arms can be incorporated through the Fourteenth Amendment.

FIncorporation not only is supported by the very being of the Second Amendment but can also be seen as a “fundamental right” of the people and can be incorporated under substantive due process, which is supported by the intent of the creators of the Fourteenth Amendment.

II
A.Our case can also be supported by District of Columbia v. Heller 128 S. Ct. 2783.

BThe Heller opinion written by Justice Scalia talks about how the right to bear arms doesn’t just apply to the militia, but to “the people” as well. He says that the, “holder of the right [is the] people” and that the, “substance of the right [is to] keep and bear arms” (Scalia’s opinion, 7). In laymen’s terms he is saying that the people hold the right to bear arms. This is expanding what was originally written in the Constitution to apply to the individual as well. So, one can’t argue against incorporation because it’s not seen as a “fundamental right” of “the people”. This decision by the Court states that the “right to keep and bear arms” is the right of “the people” and so we say it should be incorporated under the “selective incorporation” doctrine and “substantive due process”.

CThe Heller case also puts restrictions on gun ownership. Because of this, incorporating the Second Amendment would not take away all restrictions on gun ownership. The federal and state governments could still place restrictions on guns after the amendment is incorporated like the restrictions placed on free speech after incorporation. So, why can’t the same thing be done for the Second Amendment? Another question that may be asked is why incorporate just to restrict? Well, incorporating the Second Amendment guarantees a right that cannot be taken away. In McDonald v. Chicago the right to a gun was taken away not restricted. We are trying to give people rights and one can do that by incorporation and then by restricting certain areas of the right after incorporation. But incorporation ensures your State government can take no “fundamental rights” away.

DTo summarize we can use Heller as more constitutional justification for incorporation because it expands the “right to keep and bear arms” to the individual which can be seen as a “fundamental right”. Also, it allows for restrictions on guns. So, if one were to decide to incorporate the Second Amendment one wouldn’t have to worry about guns for all. However, incorporation of this right is the only way to ensure this “fundamental right” won’t be taken away.

I also have some notes taken during moot court as the argument progressed:

• They eliminated not “restricted” handguns.
• There were restrictions on the First Amendment but they were after the First Amendment was already incorporated.
• Why not incorporate this Amendment when almost all of the rest of the Bill of Rights was incorporated?
• The other side argued that things aren’t the same as they were when the Fourteenth Amendment was written because people aren’t being as heavily discriminated against, however there are still people discriminated against that need to protect themselves like maybe Muslims or criminals from other criminals.
• Isn’t “self defense” a legal defense, so why can guns be banned under the right of life?
• It will always be this right vs. life . . . it’s more like your own life vs. someone who’s trying to kill you.

I very much hope everything in the brief made sense.
If any clarifications are needed you can comment and ask a question or e-mail me at agbatyko@yahoo.com

Sources used:

• Substantive due process (this was EXTREMELY helpful): http://www.stanford.edu/group/psylawseminar/Substantive%20Due%20Process.htm
• McDonald v. Chicago:
  1. Review of case on Oyez: http://www.oyez.org/cases/2000-2009/2009/2009_08_1521
  2. Petitioner's brief: http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_Petitionernew.pdf
  3. Respondent's brief: http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1521_RespondentAmCuChicagoandOakPark.pdf
  4. The oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf
• D.C. v. Heller
  1. Scalia's Opinion: http://www.law.cornell.edu/supct/pdf/07-290P.ZO

When Animals, Federal Statutes, and the First Amendment Collide: An Analysis of United States v. Stevens

I have to start this post off with a confession. I am a Supreme Court junkie who spends far too much time on oyez.org reading SCOTUS decisions, listening to oral arguments, and generally happily wasting my time on the internet's biggest time sink. So I can say (pretty safely) that I am the first person Justice Samuel A. Alito Jr. has ever gotten kicked out of a library, and I was not at all surprised that I was.

No, I'm not kidding. I was, as usual, reading Oyez after school, and suddenly I was reading that Justice Alito was the sole dissenter in a decision that overturned a ban on videos depicting animal cruelty. Now, as a rule, I don't like Alito that much. I disagree with his interpretations of laws and the constitution, and am not a fan of his conservative ideology. But for this one case, I find myself in total agreement with him. And when I found that out, I might have been a bit . . . loud in my surprise/agreement. And, uhhhh did I mention we have a really strict librarian at our school? So yes, Justice Alito, it is partially your fault that I got kicked out of the library.

Anyway, that aside, this case is a very important one in terms of both free speech and animal cruelty laws. According to NPR, "the law was meant to prohibit a particularly gruesome genre of video called "crush videos" in which small animals are crushed by women wearing high heels, a sexual fetish practice many people find offensive on a number of levels. The particular case that made its way to the Supreme Court was about videos that showed pit bulls fighting other dogs or attacking animals like pigs." The 8-justice majority ruled that the law was too broad, and therefore unconstitutional under the first amendment. Alito takes a different view, stating in his dissent that he would instruct the lower courts to "decide whether the videos that respondent sold are constitutionally protected" (NPR).

With that background, let's move on to the facts/specifics of the case. Robert Stevens was convicted under Title 18, Section 48 of the U.S. Criminal Code, which bans the knowing creation, sale, or possession of depictions of cruelty to animals "with the intention of placing that depiction in interstate or foreign commerce for commercial gain" (18 U.S.C. §48). There are exceptions to this: if the work has "serious religious, political, scientific, educational, journalistic, historical, or artistic value", it is permissible to create/sell/possess the work (18 U.S.C. §48). Stevens' conviction "stems from an investigation into the selling of videos related to illegal dog fighting" (Oyez). The district court convicted him, and he appealed to the Third Circuit, arguing that his conviction was not valid because the federal statute was itself unconstitutional. Third Circuit reversed the district court, the government appealed to the Supreme Court, and Stevens won a 5-4 victory with a decision that upheld the Circuit based on the fact that the statute was broad enough to be unconstitutional.

The law is rather broadly worded; there are slight grey ares. Nevertheless, I am disappointed that this law was struck down, for several reasons. First, I agree with Alito when he blasts the Court for applying the overbreadth doctrine to §48. Second, I do not see any undue restrictions on first amendment rights.

In general, for a federal statute to be considered "overbroad", it must prohibit a substantial amount of protected speech. Since those acts have already been deemed illegal, and there have been no constitutional challenges to those laws, I don't see how overbreadth can be applied. As Stevens challenged the law on its face, he would typically have to prove "that no set of circumstances exists under which [§48] would be valid" (United States v. Salerno) or that the law has no "plainly legitimate sweep" (Washington v. Glucksberg). Because Stevens is a First Amendment case (neither Salerno or Glucksberg were), the Court uses a different standard, codified in Washington State Grange v. Washington State Republican Party which states that a law is overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." (Opinion of the Court, page 10).

In reading the opinion of the court, I see that they are chiefly concerned with hunting videos, and with videos of animals being killed for food. First, I see no reason why hunting videos would be covered under §48. Almost every single state has exceptions to their animal cruelty laws for wildlife/hunting (a comprehensive and specific list can be found in the appendix to Alito's opinion). Thus, they are clearly exempt under part (c) part (1) of the law, which states that the law only applies to videos depicting illegal acts. Even though the Court rather tortuously applies overbreadth because hunting is illegal in the District of Columbia, hunting would still be exempt under §48(b) because hunting can be (and usually has been) viewed as having "“scientific” value in that it promotes conservation, “historical” value in that it provides a link to past times when hunting played a critical role in daily life, and “educational” value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits" (Opinion of Justice Alito, page 7). In regards to the second worry of the Court, animals being humanely slaughtered for food: such acts are not illegal under the criminal codes of most states, and therefore §48 cannot be applied. So it cannot reasonably be argued that §48 "bans a substantial amount of protected speech in absolute terms" (Opinion of Justice Alito, page 19).

Moving on to the first amendment issue, we run into a more complex can of worms. Free speech is generally considered one of the most fundamental rights: by the preferred position doctrine, it occupies a higher consideration when deciding cases than do most other rights. However, that doesn't mean free speech is absolute. Both the Bad Tendency Doctrine and the Clear and Present Danger Doctrine restrict what speech is protected under the first amendment. Speech can be limited if it might lead to harm or to illegal action, or if there is an imminent threat to society. So if you want to yell "Fire!" in a crowded theater (a bad idea in any case) that is not protected under your right to free speech.

With that explanation of free speech and its exceptions, let's consider how those guidelines apply to animal cruelty videos, be they crush videos, dogfights, or something else. Does this "speech" lead to harm or illegal action? Obviously, yes. All states have laws (of varying strengths) against animal cruelty, and videos promoting it not only show that people can get away with breaking the law, but that it's fun, and, guess what, you can do it too! As for harm, well, the harm done to the animals is blatant, and in many cases, irreparable. Is there an imminent threat to society? That's more difficult to explain, but again, I would argue "yes". Numerous studies have shown that it is a short step from killing/torturing animals to killing/torturing humans. Representative Gallegley, the original sponsor of the 1999 bill, points out that "The FBI, U.S. Department of Education and the U.S. Department of Justice consider animal cruelty to be one of the early warning signs of potential violence by youths" (ConsumerAffairs.com). And, once again, encouraging people to break laws is in no way beneficial. In this case, I would disagree with the Third Circuit and the Supreme Court when they say that there is not enough compelling government interest for §48 to survive strict scrutiny.

I would even go so far as to question the free speech aspect of this case. The law specifically states that the animal torture videos are illegal "if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place" (18 U.S.C. §48 (c)(1)). I referenced that section above, but in essence, what this section is providing for is the arrest and (possible) conviction of people who possess videos of themselves or others committing an illegal act. Justice Alito addresses this in his opinion, while connecting the crush videos the law was intended to ban with the dogfighting videos at the core of this case: "as with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities." (Opinion of Justice Alito, page 19).

Okay, taking off my Judge hat, I will move on to the effect of this decision. First off, this decision severely limits the prosecutorial discretion of the government. As the majority of the Court says (repeatedly), §48 was originally intended to allow for the possession/sale/creation of crush videos. However, the government has used it to prosecute people for the possession/sale/creation of other videos depicting people torturing animals in ways that are also illegal -- dogfighting being just one example. In relying overmuch on original intent, the Court is making it more difficult for the government to prosecute people who wish to sell videos of themselves committing illegal acts.

Secondly, it brings into question multiple other Court decisions, most specifically those dealing with obscenity and child pornography. As noted previously, the courts have decided that some speech is unprotected; the Government asked in this case that a new category be added, saying in their brief "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." The Court reacted badly to this view, claiming that, even though they have in the past decided that in cases of unprotected speech "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required" (New York v. Ferber, child pornography case). What I find interesting, and slightly hypocritical here, is this sentence: "We made clear that Ferber presented a special case: The market for child pornography was intrinsically related to the underlying abuse, and was therefore an integral part of the production of such materials, an activity illegal throughout the Nation." (Majority opinion, internal quotations omitted). Apart from the fact that the subjects are animals rather than human children, the market's relationship to the illegal act is the same in Stevens as it was in Ferber, if not more pronounced. The Humane Society found more than 3000 animal crush videos online before the 1999 law went into effect; once the law was passed, the market vanished virtually overnight -- only to reappear with a vengeance once the Third Circuit decision came out. With such a clear correlation, how can the court continue to justify Ferber, arguable one of the most important decisions in terms of protecting those who have no voice from harm and exploitation?

The Representatives behind the §48 are working to produce a more narrow version of the law, which will hopefully satisfy these critics while still doing an effective job of both preventing criminals from profiting from their illegal acts and protecting helpless animals.

Further Reading:

• 18 U.S.C. § 48, the statute ruled unconstitutional
• U.S. v. Stevens on Oyez.org
• U.S. v. Stevens on Wikipedia.org
• ConsumerAffairs.com Article
• NPR Article (Decision)
• NPR Article (Oral Arguments)
• SCOTUSBlog Analysis (Oral Arguments)
• SCOTUS Decision (Note: PDF)

"Only Loyal Love Can Bring You Happiness"

Translation: Why on Earth do we need a federal court to tell us that denying two mature, consenting adults who are in a committed, monogamous relationship a marriage license is unconstitutional?  Or, at the very least, against traditional American values such as liberty & justice for all (Pledge of Allegiance) and equality of opportunity.
Perry v. Schwarzeneggerbegan in federal court today, launching what is sure to be one of the most high-profile cases of the year, if not forever (okay, maybe that's an exaggeration.  But still).  No matter what, this is going to be a fascinating case, for several reasons.

First, neither of the defendants in the case actually wants to defend Proposition 8.  Attorney General Jerry Brown is a vocal opposer of Prop 8.  Even Republican governor Arnold Schwarzenegger supports the lawsuit!  Which leaves the plaintiffs fighting against . . . the original proponents of Prop 8, Dennis Hollingsworth et al.

Second, even pro-gay-marriage groups are uncertain if this case is the best way to proceed.  Many think it's too soon, that risking defeat now risks making defeat permanent.  I disagree.  I think there couldn't be a better time.  This is such a prevalent issue in society right now, and especially after the recent defeats in New Jersey and New York, we need this case more than ever.

But on to the issue itself.  Was prop 8 legal?  Welllllllll legal in the sense that its supporters went about putting it on the ballot properly.  Legal in the sense that it denies marriage to a segment of the population?  I say no.  Besides my own personal beliefs, I believe there's plenty of precedent to back me up here.

1. The Constitution.  The Holy Grail of American politics, written by the founders to protect everyone from the tyranny of the majority.  Back then, "majority" meant "uneducated, rabble-rousing farmers", and "tyranny" was "acting like George III of England, or really just any dictator in general".  'Course, this is different.  But I see a majority (the people who voted 'yes' on Prop 8) and I see tyranny (denying couples the right to marry).  Am I missing something here?  Or is Prop 8 very contrary to the spirit, if not the letter, of the Constitution?
2. 14th Amendment, Part 1.  I know that only a ridiculously small percentage of Americans have even a passing knowledge of the Constitution, so let us help you out here.  The 14th Amendment states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".  There's more, but this is the part I want to talk about here.   Privileges and immunities is a very broad term. What these really are have not been specifically enumerated in the Constitution, however the Supreme Court can rule if a certain right or privilege falls under this clause. The Court has done this for the right to acquire and retain property, the right of assembly, and habeus corpus. So, why not marriage?  And if marriage, why not gay marriage?  The anti-Prop 8 lawyers might hesitate to use this clause to support their arguments, because they would first have to prove that it applied to marriage.  But in my view, anyone with a grain of sense understands that marriage -- in any form -- is a fundamental right.  Even if you want to get technical an say that a marriage licence, like, say, a driver's licence is a privilege and not a right . . . guess what!  Privileges are still protected by this clause!
3. 14th Amendment, Part 2.  Moving on through section 1 of the 14th amendment, we find that "nor shall any state deprive any person of life, liberty, or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws".  Well, the California Supreme Court has decided that Prop 8 had enough "due process" behind it to deny people liberty (freedom to marry).  But I believe that what they did not take into account is that Prop 8 is denying equal protection to gay couples . . . and equal protection cannot be taken away, even by due process.  Domestic partnerships are not the same as marriages, they are only "almost equivalent" to them (from wikipedia).  Yet they are the only option available to gay couples in some states; in others, they are denied even that.
4. Brown v. Board of Education of Topeka, Kansas.  The historic Supreme Court ruling that contended that the "separate but equal" doctrine established by Plessy v. Ferguson was unconstitutional.  Civil unions give same-sex couples some (or all) of the benefits that opposite-sex couples have.  While that is progress . . . separate but equal is not equal.  Remember those restrooms that said "whites only" and "blacks only"?   Well, it's like marriage has a big sign hanging off it that says "opposite sex couples only" and civil unions have a big sign that says "same sex couples only".  While thats not technically true, because some civil unions are open to heterosexual couples, I think you get my point.
5. Separation of Church and State.  The supporters of Prop 8 have made no secret that their religion is one of the main reasons they oppose gay marriage.  News flash, guys: no one's trying to tell you you have to like gay marriage.  No one's trying to tell you that gay marriage "must" be taught in schools.  No one is trying to tell priests that they have to marry gay couples, if they don't want to.  Marriage is a civil institution, as well as a religious one.  Open your eyes, open your minds, stop spreading lies.
6. The Futility of the "Tradition" Argument.  Right, so this one isn't a strictly legal argument.  But let me tell you some other things that have been justified by their being "tradition".  Slavery.  Denying women the right to vote.  Heck, denying women any rights.  The ban on interracial marriages.  To some extent, the ban on abortions.  And now, the ban on gay marriages. Tradition has been used to justify denying so many people civil rights that it shouldn't really come as a surprise that gay couples are next on the list.  But look around you.  Slavery is gone, women have equal rights, no one is allowed to deny a mixed-race couple a marriage licence, and abortion is legal.  Precedent?  I think so.  I hope so.
7. And in the end, shouldn't the full faith and credit clause of the Constitution have made gay marriage legal everywhere after Massachusetts legalized it in 2004?  I admit that mine and Ashley's understanding of that particular clause is less than perfect, so if anyone has any better idea, please share!

Maybe I'm wishfully oversimplifying everything.  Maybe I still have those stars in my eyes that I thought the 2008 election and the healthcare debate had cured me of.  I vividly remember the day when I learned the California Supreme Court legalized gay marriage.  I was swimming in my neighbor's pool, my mom was reading the newspaper.  When she told me, my response was "well, duh."  But when I look at the history of our country, I just find it ridiculous, and totally counter to our most cherished ideals that something as fundamental as two people's right to get married is being put to a majority vote.

Ultimately, Jerry Brown has said it best: "Proposition 8 violates constitutionally protected liberties. There are certain rights that are not to be subject to popular votes, otherwise they are not fundamental rights.  If every fundamental liberty can be stripped away by a majority vote, then it's not a fundamental liberty."

Further reading:

• http://www.npr.org/templates/story/story.php?storyId=122447805&ft=1&f=1001
• http://www.nytimes.com/2010/01/12/us/12prop8.html?src=twt&twt=nytimes
• http://www.latimes.com/news/nation-and-world/la-na-prop-8-12-2010jan12,0,7701011.story
• http://en.wikipedia.org/wiki/Perry_v._schwarzenegger

And yes, I have (rather) shamelessly cribbed the title quote from Sinead O'Connor's song "What Doesn't Belong to Me".  Credit where credit is due . . . it's a great song!