Happy Days Actor Tom Bosley Has Died

The Washington Post reports that actor Tom Bosley -- famous for his role as Howard Cunningham on Happy Days -- has died. Bosley was 83. The Washington Post article has a good summary of Bosley's accomplishments.

Message from NY Gubernatorial Candidate: Rent Is Too Damn High!

The New York gubernatorial debate contained some comedic moments courtesy of candidate Jimmy McMillan. McMillan stressed one central theme during the debate: The Rent Is Too Damn High. Fittingly, the political party that McMillan's founded and that he represents bears the same name. Thanks to Gawker for the scoop.

Predictably, McMillan's comments are becoming a web sensation. I have posted YouTube footage below. Please note that McMillan's comment about marrying a "shoe" is in response to a question about same-sex marriage. Apparently, he is not opposed to the idea.

Washington Post Columnist "Angry" With Injunction Banning DADT

Washington Post columnist Jonathan Capehart is "angry" with federal judge Victoria Phillips's order that enjoins the military from enforcing Don't Ask, Don't Tell. Although Capehart agrees with the "fairness" of the ruling, he believes that Congress should repeal the statute:

[T]his ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.

It is not entirely clear whether Capehart is simply angry that Congress "failed to act" or whether he believes that the court should have waited for Congress to act. If Capehart is angry with Congress alone, then I agree with his position.

If Capehart, however, believes that the court should have waited for Congress to act, then I must dissent from this position. People have made similar arguments in other contexts. For example, conservatives, including members of the Supreme Court, have argued that the Supreme Court should have declined to find a constitutional right to terminate a pregnancy in Roe v. Wade. At the time, conservatives argued that the democratic process -- not courts -- should resolve the matter. Similarly, conservatives have criticized court rulings that invalidate laws banning same-sex marriage, and they have expressed a preference for legislative action instead.

Judge Phillips, however, did not "repeal" DADT. Instead, she enforced the Constitution. Generally, judges should not wait for lawmakers to act before they remedy violations of the law. This argument is even more compelling when the same legislature (Congress) enacted the unconstitutional law in the first place. I commend the judge's ruling -- even though I think parts of it are subject to criticism, if not reversal. Congress has delayed justice in this area far too long.

Federal Judge Enjoins DADT, But Ruling Not Flawless

A federal judge in California has declared Don't Ask, Don't Tell unconstitutional and enjoined enforcement of the anti-gay policy. The judge held that the policy violates the Due Process and First Amendment rights of gays and lesbians. Both the opinion and the injunction are available online.

I have read the injunction and the 86-page opinion. Although I agree that DADT is unconstitutional (and homophobic), the judge's ruling is not without weaknesses. There are three elements to the decision that could result in a reversal.

First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.

Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.

The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.

The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.

There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.

In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.

Gators Pull Off Victory Despite Very Sloppy Offensive Performance

The Florida Gators opened its football schedule at home playing Miami of Ohio. Although the Gators won 34-12, the offense played awful football.

Several commentators have rushed to blame Florida's offensive performance on the absence of Tim Tebow. Some of these same commentators, however, likely predicted that Tebow would fail in the NFL, and they probably harshly criticized him during his time at Florida.

Analysts who watched the game looking to understand what actually happened will resist the kneejerk "post-Tebow" script. Quarterback John Brantley actually did a decent job for his first start. Some of the veteran offensive players, however, had an inexcusably terrible performance. Mike Pouncey, for example, had over a dozen bad snaps, which made it hard for Brantley to utilize his powerful throwing arm. Also, several offensive players fumbled the ball, resulting in Gator turnovers.

The strongest element of the game was the defense. Despite numerous turnovers and mistakes by the offense, the Florida defense prevented Miami from going into the endzone.

Thankfully for the Gators, the team was able to escape this miserable performance with a victory. In addition, the Gators will have a week to correct mistakes and get ready for SEC play. Alabama is only two weeks away for Florida.

UPDATE: This analysis at Bleacher Report gets it right.

Jan Brewer: No More Debates!

Jan Brewer's horrendous performance in the recent Arizona gubernatorial debate has become an Internet sensation. Brewer stumbled during her opening statement. She sat silent and uncomfortable or nearly ten seconds, unable to recall what she should say. And she repeatedly used incorrect grammar, describing what "we have did" for Arizona.

Brewer has now called it quits: no more debates. Brewer says she cannot perform well in an "adversarial" process (so why does she want to govern one of the largest states in the nation). She also foolishly admitted that she agreed to the debate only to qualify for state campaign assistance. Translation: I do not want the voters to realize that I have no answers when my ideas are challenged, but thanks for the campaign funding.

Here is video footage of Brewer's awful opening statement.

Progressive Coalition Planning March on Washington, October 2, 2010

One Nation Working Together, a coalition of dozens of organizations and individuals, is sponsoring a march on Washington scheduled for October 2, 2010. The organization's webpage contains a tab labeled "What We Stand For," which includes the following statement:

We all deserve a just and fair chance to achieve the American Dream. Our national identity is rooted in the ideal that all people – regardless of race, class, sex, sexual orientation, gender identity, heritage or ability – should have the opportunity to fulfill their potential.

One Nation Working Together will chart a bold, pragmatic path toward a more unified, sustainable, prosperous future by building support for these core principles and policy ideals.

The website also says that conservatives, liberals, progressives and moderates are all members of the organization. The list of "endorsing organizations," however, are predominately liberal and progressive groups. It is great to witness some visible social movement activity from the left.