Last Call For A Brave New World

SCOTUSBlog's Lyle Denniston previews tomorrow's Supreme Court oral arguments on same-sex marriage and the Constitutional issues before the justices.

Assuming that the Supreme Court moved forward to a decision on the constitutional controversy, it probably must choose between two contrasting interpretations of what right is at stake. It would be harder for gays and lesbians to win — though not entirely beyond their reach — if one of those versions were accepted by the Justices. 

Gay and lesbian couples insist that they are not asking the Court to declare, for the first time ever, that gays and lesbians have a right to marry — that is, a new and very specific right to marry the person of one’s choice, when that person is of the same sex. 

Rather, they contend that there is an existing right to marry, well established in every state, and they simply want equal access to it. It is their exclusion from a right now open to opposite-sex couples that they argue denies them legal equality and due process under the Fourteenth Amendment. 

There are two variations of that claim. 

One is that the Fourteenth Amendment forbids denial of equal legal rights based upon a constitutionally forbidden category. In this situation, that category is sexual orientation or, as it is sometimes called, gender identity. 

The other is that the Supreme Court has declared that marriage is a fundamental right under the Constitution, and that the right may not arbitrarily be denied to a couple that — except for their same-sex characteristic — would be eligible to enter it. 

And the argument against same-sex marriage:

Many lawyers for states, in defense of their bans, have made a contrasting argument. They contend that gays and lesbians are, in fact, asking the Court to create a brand-new constitutional right to marry a person of the same sex. 

The Court, of course, very seldom establishes a previously non-existent constitutional right. It can extend an existing right to new groups — for example, give women legal equality — but it does so by finding that the underlying constitutional concept has simply evolved. The recognition of a new right is simply an interpretative alteration, not a new creation, done from scratch. 

Even less often, lawyers for the states have contended, does the Supreme Court recognize a new “fundamental right.” To exist at that most important level, there must be a history behind the right, something that is so evidently a part of constitutional understanding that it is only natural to formally acknowledge it. 

In the same-sex marriage cases, then, gay and lesbian couples would confront a major obstacle to winning their case if they had to persuade the Court to create a new right of gay marriage, as such, and, especially, if they had to make the case that such a right is fundamental in the constitutional sense. 

So the outcome is actually fairly simple if the plaintiffs are victorious:

If the couples win on the first point, then equality would be mandated nationwide, and recognition would seem to lose its separate significance. It is possible that the Court, if it were to examine the recognition issue wholly apart from its obvious link to marriage access, might find it fairly easy to assure equality in recognition. That, in effect, is what it required the federal government to do when, in the Windsor decision, it opened federal marital benefits to already married same-sex couples as a matter of constitutional equality. 

Much of the written briefing in the four cases seems to proceed on the assumption that the two rights being claimed are not distinct, but closely intetwined. It is difficult, indeed, to imagine how the Court might rule in favor of one but not the other.

So the bottom line is that the pro side believes the federal right to marry already exists and is being expanded by the Fourteenth Amendment.  The con side believes the right does not exist, because it is a state issue, and that a federal mandate cannot be created wholesale by the courts (and therefore must fall to the states).

Again, as Denniston says, it seems very difficult to say there's no federal mandate to recognize same-sex marriage nationally without, well, recognizing same-sex marriage nationally.  The clues are there that indicate that there are at least five justices willing to say there is (and possibly six, if you think the Chief Justice wants his fingerprints on this legacy.)

We'll have more data to pore over tomorrow.

Ferguson: Economic Violence 101

Charles Warren details in The Atlantic how Ferguson, Missouri spent years using its police as a taxation force, harassing the (mostly black) citizenry to raise money to run the local government despite Ferguson being the home of a $24 billion Fortune 500 corporation.

Take a walk along West Florissant Avenue, in Ferguson, Missouri. Head south of the burned-out Quik Trip and the famous McDonalds, south of the intersection with Chambers, south almost to the city limit, to the corner of Ferguson Avenue and West Florissant. There, last August, Emerson Electric announced third-quarter sales of $6.3 billion. Just over half a mile to the northeast, four days later, Officer Darren Wilson killed Michael Brown. The 12 shots fired by Officer Wilson were probably audible in the company lunchroom. 

Outwardly, at least, the City of Ferguson would appear to occupy an enviable position. It is home to a Fortune 500 firm. It has successfully revitalized a commercial corridor through its downtown. It hosts an office park filled with corporate tenants. Its coffers should be overflowing with tax dollars. 

Instead, the cash-starved municipality relies on its cops and its courts to extract millions in fines and fees from its poorest residents, issuing thousands of citations each year. Those tickets plug a financial hole created by the ways in which the city, the county, and the state have chosen to apportion the costs of public services. A century or more of public-policy choices protect the wallets of largely white business and property owners and pass the bills along to disproportionately black renters and local residents. It's easy to see the drama of a fatal police shooting, but harder to understand the complexities of municipal finances that created many thousands of hostile encounters, one of which turned fatal.

The familiar convention of the true-crime story turns out to be utterly inadequate for describing the social, economic, and legal subjection of black people in Ferguson, or anywhere in America. Understanding this requires looking beyond the 90-second drama to the 90 years of entrenched white supremacy and black disadvantage that preceded it.

The key to Ferguson's plight is nothing less than decades of a regressive "race to the bottom" taxation system designed exclusively to benefit white property owners and businesses at the expense of black tenants and renters.

Like most of the rest of St. Louis Country, mid-century Ferguson was defended by exclusionary zoning codes and whites-only collusion in the real estate market. In the 1960s Ferguson was known as a “sun-down” community: African Americans, mostly from neighboring Kinloch, came in to work in the houses of wealthy whites in Ferguson during the day, but were expected to be out of town by the time the sun set. To this day, the adjacent cities are joined by only two through streets, the Ferguson city line runs down a neutral zone lined on either side with mirror-image three-way intersections. If you have been to St. Louis, you likely landed in Kinloch. Over the last three decades, the vast majority of that city’s black residents have been displaced to accommodate the expansion of Lambert-St. Louis Airport. Over the same period of time, a small number of African American homeowners and a much larger number of African American renters have gradually replaced whites in Ferguson. Ferguson, which was almost entirely white in 1970, today has a black majority. 

In 1981, a federal judge in Missouri declared that the “severe” residential segregation of the St. Louis metropolitan area had produced a constitutionally impermissible degree of segregation in the region’s schools. The court tasked the East-West Gateway Government Council and the Missouri Housing Development Commission with developing a plan to desegregate the metropolitan area, but they simply ignored the ruling. At the turn of the 21st century, almost one-half of St. Louis County’s 90-odd municipalities had black populations under 5 percent.

And that brings us to Emerson Electric.

For tax purposes, Emerson’s Ferguson campus is appraised according to its “fair market value.” That means a $50 million dollar solar-powered data center is only worth what another firm would be willing to pay for it. “Our location in Ferguson affects the fair market value of the entire campus,” Polzin explained. By this reasoning, the condition of West Florissant Avenue explains the low valuation of the company’s headquarters. 

In fact, the opposite is true: The rock-bottom assessment value of the Ferguson campus helps ensure that West Florissant Avenue remains in its current condition, year after year. It severely limits the tax money Emerson contributes to the Ferguson-Florissant district’s struggling schools (Michael Brown graduated from nearby Normandy High School, a nearly 100 percent African American school that has been operating without state accreditation for the last two years), and to the government of St. Louis County more generally. On the 25 parcels Emerson owns all around St. Louis County, it pays the county $1.3m in property taxes. Ferguson itself receives far less. Even after a 2013 property tax increase (from $0.65 to the state-maximum $1 per $100 of assessed value), Ferguson received an estimated $68,000 in property taxes from the corporate headquarters that occupies 152 acres of its tax base—not even enough to pay the municipal judge and his clerk to hand out the fines and sign the arrest warrants. 

St. Louis County doesn’t just assess Emerson a low market value. It then divides that number in three—so its final property value, for tax purposes, ends up being one third of its already low appraised value. In some states, Ferguson would be able to offset this write-down by raising its own percentage tax rate. Voters would even be able to decide which services needed the most help and raise property taxes for specific reasons. But Missouri sets a limit for such levies: $1 per $100 of property. As Joseph Pulitzer wrote of St. Louis during the first Gilded Age, “millions and millions of property in this city escape all taxation."

A $24 billion company generates just $68,000 in taxes for the city in which it resides.  One percent of assessed value.  Put the $50 billion data center in a place like Ferguson and it becomes nearly worthless to tax.

America is broken.

 

Warren, No Peace, Brown, Won't Back Down

Sens. Elizabeth Warren and Sherrod Brown continue to go directly after President Obama over fast track authority for the Trans-Pacific Partnership trade deal, and they let fly again over the weekend calling on the president to immediately declassify all terms being negotiated for the deal.

Obama equated that argument to the “death panels” floated during the ObamaCare debate, as a claim so far-fetched as not to be taken seriously, adding that members of Congress have been frequently briefed on the talks.

“Someone coming up with a slogan like ‘death panels’ doesn’t mean it’s true,” he said Thursday. “The same thing is true on this. Look at the facts, don’t just throw a bunch of stuff out there.”

In response to those claims, Warren and Brown told Obama to release the text of the negotiations to the public. While members of Congress can review documents, it is illegal to release them to the public or discuss specifics.

And if, as Obama says, the trade deal is his best effort to carve out good terms for the working class, they argued there is no reason not to let the public review it before it is finalized.

“The American people should be allowed to see for themselves whether it’s a good deal for them,” they wrote.

“Characterizing the assessments of labor unions, journalists, members of Congress and others who disagree with your approach to transparency on trade issues as ‘dishonest’ is both untrue and unlikely to serve the best interests of the American people,” they added.

Brown at least has re-election to try an win in 2016 in Ohio. But Warren is safe and in a safe seat. Going this hard after President Obama didn't exactly work in 2014, so I'm wondering what Warren's game is. Cover for Hillary? Playing the foil to help the President? I'm not sure.

But the argument that negotiation terms need to be disclosed while the negotiations are still ongoing is ridiculous. That is Warren and Brown scoring cheap points, and they know it. If you're going to argue that the deal is bad, but can't tell us as to why, then have a seat.

StupidiNews!

• The death toll in this weekend's earthquake in central Nepal has risen to more than 3,700 as the capital of Kathmandu reels amid destruction of ancient temples and buildings.
• The US Supreme Court will hear hours of arguments Tuesday on the legality of state same-sex marriage bans and recognizing marriages from other states with a decision expected in June.
• Hundreds of poultry workers exposed to the H5N2 strain of bird flu have been offered preventative antiviral medicine in case the flu mutates and a human is infected by the disease.
• Dozens remain trapped on Mt. Everest base camps as this weekend's earthquake in Nepal triggered a massive avalanche on the world's highest mountain, killing 19 so far.
• Google faces an age discrimination suit from a 64-year-old engineer as the company deals with having a median employee age of 29, well below the national average.