Analysis: Defense of Marriage Act found unconstitutional

Plaintiffs Nancy Gill and Marcelle Letourneau A unanimous panel of United States Court of Appeals for the First Circuit has upheld the 2010 Massachusetts district court decision declaring the Defense of Marriage Act unconstitutional in its denial of federal benefits to couples legally married by the Commonwealth of Massachusetts. In short, the panel determined that none of the proffered justifications for DOMA could withstand the heightened level of scrutiny required of legislation that targets historically disadvantaged or unpopular groups.

The panel was composed of Judges Lynch (Clinton nominee), Torruella (Reagan), and Boudin (GHWB); the opinion was written by Judge Boudin, who served as Chief Judge for the First Circuit from 2001-08.

Interestingly, the panel holds that DOMA does have a rational basis ...

Under such a rational basis standard, the Gill plaintiffs cannot prevail. Consider only one of the several justifications for DOMA offered by Congress itself, namely, that broadening the definition of marriage will reduce tax revenues and increase social security payments. This is the converse of the very advantages that the Gill plaintiffs are seeking, and Congress could rationally have believed that DOMA would reduce costs, even if newer studies of the actual economic effects of DOMA suggest that it may in fact raise costs for the federal government.

... but that a heightened standard instead applies, per the Moreno/City of Cleburne/Romer line of cases I've previously discussed:

Without relying on suspect classifications, Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications. And (as we later explain), in areas where state regulation has traditionally governed, the Court may require that the federal government interest in intervention be shown with special clarity.

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible. It is these decisions--not classic rational basis review--that the Gill plaintiffs and the Justice Department most usefully invoke in their briefs (while seeking to absorb them into different and more rigid categorical rubrics)....

All three of the cited cases--Moreno, City of Cleburne and Romer--stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571. The Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.

ADP counts slightly stronger private-sector job growth for May. Unemployment benefit claims climb

(Rachel Maddow Blog) For the week ending May 26, the Department of Labor reported Thursday, seasonally adjusted initial claims for unemployment insurance benefits rose to 383,000, 10,000 more than the previous week's revised figure of 373,000.

The four-week moving average, which analysts prefer because it flattens volatility in the weekly numbers, rose to 374,500, up from last week's 370,750.

For all programs, including the federal government's emergency extensions for states hardest hit by the Great Recession, the total number of people claiming benefits for the week ending May 12 was 6,137,862, a decrease of 30,753 from the previous week. Extended benefits were available in Alaska, California, Colorado, Connecticut, the District of Columbia, Florida, Idaho, Illinois, Nevada, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, Texas, and West Virginia during the week ending May 12.

Because of the February budget deal in Congress, more and more Americans who have been employed for nine months or longer will be losing their unemployment benefits from now until September because the number of weeks they are eligible to receive them is dropping from 99 to 73 in the hardest hit states. In low employment states, as few as 40 weeks will be available. Already, 409,000 have lost their benefits prematurely because of the deal. By the end of June, that total will reach nearly half a million.

The first-time claims figure released each week is an "advance" number, which is revised the following week when statistics are improved by better information from the states. For instance, the advance figure for the week ending May 19 was 370,000 and revised this week to 373,000. Over the past seven months, since Nov. 5, the revisions have been upward for 24 weeks and downward for five weeks. During that period, the average revision has been about 3 percent.

(Continue reading below the fold)

Bill Clinton going to Wisconsin to campaign against Scott Walker

(dbking)

Bill Clinton is going to Wisconsin to help Milwaukee Mayor Tom Barrett in the final days of the recall campaign against Gov. Scott Walker, two sources tell Greg Sargent, who writes that:

As late as yesterday afternoon, it was still not certain whether Clinton would go to Wisconsin. DNC chair Debbie Wasserman Schultz, in a meeting with Democrats, seemed to suggest that he was trying to determine whether he would go. But neither the DNC nor Clinton's camp would confirm whether it was going to happen, and Democrats cautioned that Clinton had not made up his mind.

But now he will go to Wisconsin, the source confirms.

Polling suggests that while Walker is in the lead, the race is tight, and with few undecided voters, the outcome is very much dependent on turnout. Having the popular ex-president campaign for Barrett in a strategic location (or locations) and give the Barrett campaign a burst of positive press could provide a valuable boost.

Join Bill Clinton in helping defeat Scott Walker by giving $4 to help Tom Barrett win on June 5.

11:19 AM PT: Scott Walker has released more than 7,000 pages of emails thanks to an open records request. The only way to get through them all before the recall is a crowdsourcing effort. Please help by joining that effort.

War on Women trumps jobs, jobs, jobs

Speaker John Boehner, this is, um, bullshit. Hahahahaha. No, seriously.

Speaker John Boehner doesn't mince words.

"Let's call bulls--- bulls---," he told House Republicans in a closed meeting this morning.  "This election is about jobs, jobs, jobs."

Gee, what's his House voting on today?

Postponed Suspension (1 Bill)
H.R. 3541' Prenatal Nondiscrimination Act (PRENDA) of 2012, as amended (Rep. Franks ' Judiciary)

What's that? An anti-abortion bill of course, to ban a non-existent practice of women aborting fetuses just because they'll turn into girl babies or black babies.

Boehner's got a really strange idea of what "jobs" means.

Pete Hoekstra says birtherism is a waste of time, panders to it anyway

Yeah, the Pete Hoekstra campaign
would never pander to racists. Silly us. It's only the beginning of summer, so I can't imagine how nutty the "birther" conspiracy theorists are going to get by the time the actual election rolls around. Already, the Republican Party as a whole seems dedicated to the notion that there just is no conspiracy theory too ridiculous to be coddled'and why would they think otherwise, when their base has gone nuts? It's not like they have a choice.

So here's senate candidate Pete Hoekstra, simultaneously walking back and doubling down on his previous suggestion that something really ought to be done about this whole maybe the president is illegitimate after all thing. In political speak, we call that difficult-to-execute twofer Pulling a Romney:

"You would think that a country as great as ours could have a single person, maybe two, who every two years was assigned with the responsibility of making sure that people who run for office meet the minimum qualifications for that office so that we will never have this discussion again," Hoekstra said Wednesday during a candidate forum at the Mackinac Policy Conference.

I think we already have something better than that, though, in the vast national press corps (note: this is perhaps the only time I will praise the national press, and I am about to immediately disembowel that praise). Scandal is something they are quite good at! We have a lovely free-market solution to the problem of unauthorized candidate-being, which is that all across America, there are journalists who would sell their own mothers to get confirmation of a story like "a presidential nominee is secretly not an American after all!" And, as we can see, having scores of vetting reporters confirming that the current president's paperwork does, indeed, check out has done almost nothing to quell the suspicions of those people who really, really want to believe otherwise. Do we really think that having one or two government functionaries saying the same thing would "settle" a damn thing?

That's the doubling down part. But Hoekstra wants you to know, simultaneously, that he's very cranky at even having to talk about this:

The West Michigan Republican grew animated and loud as he defended remarks he made earlier this month at a Michigan tea party gathering, suggesting he would not have broached the topic if he had not been asked.

"This is an absolutely ludicrous discussion to be having four years after a presidential (election)," Hoekstra said at a near  shout. "It is an absolute waste of time and energy. We have trillion dollar deficits. We have eight percent unemployment. We have a health care system that is collapsing. And somebody is asking about the birthing issue?"

Don't look now, but I think he just called the tea party a bunch of dipshits.

Still, he points out the wonderful thing about birtherism: Of course it's a waste of time and energy, if you think about it logically. If the point is merely to pander to thinly veiled racist sentiments of Obama's otherness, however, thus satisfying a large percentage of the base who are convinced of Obama's supposed "radical" nature because of that supposed otherness, then it becomes a nice little campaign tool.

Despite Hoekstra's protestations, that's in fact exactly how he used it. In front of a tea party crowd of conspiracy theorists, he entertained their theory and suggested government ought to get right on that. In front of a slightly less embarrassing crowd, he denounced the same damn thing as a waste of time'while still suggesting government get right on that. That's the way the birther game is played.

GOP Madness, Quarterfinals, Match 3

We know half of the semifinal matchups: On the left side of the bracket, the GOP debate audience who booed the gay soldier will compete with today's winner for a spot in the finals. On the right side of the bracket, Mitt Romney's Etch-a-Sketch will face tomorrow's winner (either the GOP debate audience who thinks it's funny that people get sick and die, or Romney's "Corporations are people, my friend!").

1. RICK SANTORUM DOESN'T WANT YOU TO HAVE SEX FOR PLEASURE

One of the things I will talk about that no president has talked about before is I think the dangers of contraception in this country, the whole sexual libertine idea ... Many in the Christian faith have said, "Well, that's okay ... contraception's okay."

It's not okay because it's a license to do things in the sexual realm that is counter to how things are supposed to be. They're supposed to be within marriage, for purposes that are, yes, conjugal ... but also procreative. That's the perfect way that a sexual union should happen. We take any part of that out, we diminish the act. And if you can take one part out that's not for purposes of procreation, that's not one of the reasons, then you diminish this very special bond between men and women, so why can't you take other parts of that out? And all of a sudden, it becomes deconstructed to the point where it's simply pleasure. And that's certainly a part of it'and it's an important part of it, don't get me wrong'but there's a lot of things we do for pleasure, and this is special, and it needs to be seen as special.

Again, I know most presidents don't talk about those things, and maybe people don't want us to talk about those things, but I think it's important that you are who you are. I'm not running for preacher. I'm not running for pastor, but these are important public policy issues.

Original write up here. And yes, Ricky, there's a reason presidents have never scolded people for having sex for pleasure.

2. RICK PERRY SPEECHIFIES WHILE DRUNK. OR HIGH. OR BOTH.

Original write up here. The video above is a "greatest hits" compilation from the speech, but if you still don't have the three and a half minutes to watch it all, then watch the first and last 15 seconds. It's performance art from the guy Republicans thought would save them from Romney.

Another Elizabeth Warren heritage story, Massachusetts electorate still yawns

Elizabeth Warren campaign rally It's the non-story story that won't die, no matter how much voters don't want to hear about it anymore. Yet another story on Elizabeth Warren's Cherokee heritage demonstrates that her claims had nothing to do with her career advancement.

'At some point after I was hired by them, I . . . provided that information to the University of Pennsylvania and Harvard,'' she said in a statement issued by her campaign. 'My Native American heritage is part of who I am, I'm proud of it and I have been open about it.'' [...]

Two key people who recruited her to Harvard have said they did not know of her purported heritage or take it into account when hiring her. The school did not promote her as a Native American when she was hired, despite the fact that it was under intense pressure to diversify its faculty with more minorities.

At some point, one would think the Massachusetts press (not counting the Herald, which doesn't count as journalism) would take a cue from their readers and just move on. We've already had one poll showing the smear has been rejected by voters, and that a huge majority of them don't care: 69 percent said Warren's Native American heritage listing is "not a significant story."

The Springfield Republican and MassLive.com found that out directly just this week, from the horses' mouths, when they interviewed 24 voters selected to proportionally represent the state's electorate. The people already supporting either candidate hadn't changed positions, but the unaffiliated voters gave a collective yawn, with three-quarters of them saying they just don't care. Here's a representative quote:

Rosalind Davidson, 85, an unaffiliated voter and retired teacher from Cambridge, said she does not believe Warren benefited from listing her heritage. 'She is so competent she certainly doesn't need anything to verify her ability as a professor and lawyer,' Davidson said. 'They were just hunting for something.' Davidson said the truth about Warren's ancestry doesn't matter to her. 'Maybe she is (Native American), ok, fine. Maybe she isn't, ok, fine.'

"They were just hunting for something." Yep. Scott Brown, and the hardcore of his supporters (the core some national bloggers'Rachel Weiner of The Fix, I'm looking at you'think is critical, however small it might be) will keep harping on this, with the racist and sexist Herald flogging it for all it's worth. Which has proven to be by now pretty much nothing.

Please contribute $3 to Elizabeth Warren on Orange to Blue.

Mark Fiore - Either Way

Federal appeals court rules Defense of Marriage Act unconstitutional

Gay marriage supporter at the 41st LGBT Pride parade in San Francisco (Reuters/Susana Bates) AP:

An appeals court ruled Thursday that a law that denies a host of federal benefits to gay married couples is unconstitutional.

The 1st U.S. Circuit Court of Appeals in Boston said the Defense of Marriage Act, which defines marriage as a union between a man and a woman, discriminates against gay couples.

The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The court put a stay on its own ruling, anticipating that its ruling would be appealed and that the Supreme Court will ultimately make a final decision. Because the Obama administration will not defend the law'which President Obama believes is unconstitutional'the Republican-controlled House will mount its own defense of the law.

The appeals court ruling is here.

Romney aides disrupt Obama campaign press conference on Mitt Romney's gubernatorial record

Mitt Romney aides shouted, screamed, and even blew bubbles in an effort to drown out discussion of Romney's gubernatorial record during a press conference organized by the Obama campaign Here's a vivid illustration of just how badly Mitt Romney wants to avoid any discussion of his record as governor of Massachusetts: he sent his campaign aides to shout down speakers at a press conference organized by the Obama campaign to discuss Romney's governorship. Romney aides and supporters repeatedly shouted, screamed, and even blew bubbles and vuvezelas in an effort to disrupt the press conference, which was held in Boston.

Obama campaign senior strategist David Axelrod, who was the featured speaker at the event, told the Romney aides that their efforts to drown out discussion of Mitt Romney's record as governor would not succeed. "You can shout down speakers," he said. "But it's hard to Etch A Sketch the truth away."

Axelrod said that the reason Romney never talks about his gubernatorial record not he campaign trail is that under Romney's leadership, Massachusetts was 47th in the nation in job creation. "You can't handle the truth," Axelrod said, addressing the Romney campaigns efforts to shout down the press conference. "If you could handle the truth, you'd quiet down." The truth, Axelrod said, was that Romney in 2002 promised that his record at Bain would help him lead an economic boom in Massachusetts'a boom that never materialized. Romney is promising the same thing today, Axelrod said, but there's no more reason to believe Romney in 2012 than there was in 2002.

Somerville Mayor Joe Curtatone mocked the the Romney campaign's efforts. "Thank you for the bubbles," Curtatone said. "It's a hell of a lot better than the smoke Mitt Romney blew at us ten years ago and that he's blowing across America!"

Next thing you know, Mitt Romney will accuse President Obama of running Bain Capital

Mitt Romney falsely accused President Obama of doing exactly what he'and his campaign'have done (Beck Diefenbach/Reuters) With one visit to the failed solar energy firm Solyndra, Mitt Romney hit a perfect trifecta today'a perfect trifecta in that he leveled three separate accusations against President Obama  ... each of which were not only false, but the mirror image of valid criticisms against Mitt Romney.

First, Romney's campaign cloaked his visit to Solyndra in secrecy, refusing to tell reporters where they were going when they set out to stage the event. Their explanation for the secrecy?

"We knew, if word got out, that Solyndra would do everything in their power, and the Obama administration would do everything in their power, to stop us from having this news conference," the adviser said.

Asked how the Obama administration could prevent an event staged on public property, the adviser said there might be a way.

"Well, he's only the president of the United States," the adviser said. "I mean, they could work with town officials to deny us access."

Not only is that Glenn Beck-style black helicopter nonsense, Romney's own campaign earlier today disrupted an Obama campaign press conference, hoping to shut down a discussion of Mitt Romney's record.

Second, when Romney was asked about his campaign's effort to drown out the Obama press conference, Romney claimed his staff was merely doing what the Obama campaign has already done:

If the President is going to have his people come into my rallies and heckling, why, we'll show them that we conservatives have the same kind of capacity he does.

This wasn't a campaign rally'this was a press conference. And President Obama has never sent his staff to disrupt a Romney event, whether it's a press conference or a rally. So this wasn't a case of turnabout is fair play: This was a case of Romney trying to be a bully. Axelrod was lucky to escape with the (admittedly scarce) hair on his head.

Third, Romney says Solyndra represents "crony capitalism." He claims President Obama supported the firm's loan guarantee application to reward campaign donors who he claims invested in Solyndra. But the truth is that none of President Obama's major donors were Solyndra investors and even if they were, the Bush administration supported Solyndra's application and encouraged the Obama administration to continue pursuing it. As for Romney?

GOP presidential hopeful Mitt Romney has hammered President Obama for his administration's tax-funded investment blunders ' but when Romney was governor, the state handed out $4.5 million in loans to two firms run by his campaign donors that have since defaulted, leaving taxpayers holding the bag.

The two companies ' Acusphere and Spherics Inc. ' stiffed the state on nearly $2.1 million in loans provided through the state's Emerging Technology Fund, a $25 million investment program created while Romney was governor in 2003 that benefitted 13 local firms.

Acusphere, a biotechnology firm headed by a Romney campaign donor, got $2 million in 2004 that it was supposed to put toward a $20 million manufacturing facility in Tewksbury, which never became fully operational

And perhaps the perfect capper to Romney's perfect trifecta, it turns out that Karl Rove's latest video attacking President Obama accuses Obama of using taxpayer dollars to support a company ... that received taxpayer dollars from Massachusetts, under Mitt Romney.

At this point, I don't know what's more likely: Mitt Romney accusing President Obama of bullying gay kids in high school ... or accusing him of being the vulture capitalist CEO of Bain Capital. Whatever it is, it's surely something for which Mitt Romney is guilty.