WaywardSean

Proposition 8: Ex Post Facto Law?

Watching the election results last night with friends was a bittersweet experience. I certainly felt proud to be an American and that I was watching a moment of history unfold when Obama addressed his supporters and gave his vision for the future direction of the country. The bitter part came from seeing what a dismal night it was for gay rights. Arizona voters banned gay marriage, Arkansas voters banned adoption by gay couples, Florida voters (while flipping to a blue state) banned gay marriage and in California Proposition 8, although still being counted, looks like it will pass as well and end gay marriage there. The California case is especially interesting since it was not like in Florida and Arizona where voters were voting against the possibility of gay marriage, in California gay couples has already been getting married since a May court ruling.

If it passes, which looks likely now, Prop 8 would add a new section to the state Constitution reading:

Only marriage between a man and a woman is valid or recognized in California.

So what then happens if you got married legally and then after the fact the state constitution gets amended so that your marriage is no longer defined as a marriage? Well, despite all the attention Prop 8 has received it doesn’t seem like anyone really knows what will happen to these marriages.

Article I, Section 10 of the Constitution seems to provide some guidance on this question as it states that

no State shall pass any ex post facto Law.

An ex post facto law is one that makes something illegal after the fact. So, a law can’t go back after the fact and criminalize something that wasn’t illegal at the time you did it. It is not immediately clear though if ex post facto protection would apply to marriage though because of a 1798 Supreme Court decision, Calder v. Bull.¹

The case deals with a Connecticut couple (Bull) seeking to appeal a probate court decision after the 18-month window for appealing decisions. After the couple was able to get the state legislature to extend the window of time that one had for appealing a decision, the couple successfully appealed the decision. The looser of that case (Calder) then challenged the appeal as unconstitutional, citing the prohibition against ex post facto laws. A unanimous court ruled against Calder though, finding Connecticut legislator to have enacted a “retrospective law” and not an “ex post facto law.” Justice Samuel Chase² writing for the court explained the differences between these two classes of law:

Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions “ex post facto laws” are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors.

The bottom line from Justice Chase is that he does not think that the ex post facto provision of the constitution:

was inserted to secure the citizen in his private rights of either property or contracts.

Other court decisions certainly seem to place marriage into this class of private rights the court found was not covered by the ex post facto provision. For example, here is what the court had to say about marriage in Loving v. Virginia³, the case which struck down prohibitions against interracial marriages:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

There will most definitely be legal challenges by those married couples who are trying to prevent their marriage from being defined out of existence - I wish them well but I think they will have an uphill battle arguing ex post facto.

FCC v. Fox Television Stations: Is Cher's Potty Mouth Harming Society?

On Tuesday, the Court will hear argument in FCC v. Fox Television Stations¹, in which broadcasters are fighting fines imposed by the Federal Communications Commission for the airing of expletives, even if unintentional and isolated. For example, upon winning a Billboard Music award Cher triumphantly said: “People have been telling me I’m on the way out every year, right? So fuck ‘em.” The great irony of course of indecency cases is that it often gets the “indecent” word banded about more than the original incidents the cases are about. Even the lawyers involved in the case are aware of this:

The channel’s lawyer, Carter G. Phillips, said that “unless someone tells me not to,” he will use in court the actual words that federal regulators hope to keep off the air.²

Further showing the difficultly of pushing for a case about things unrefined to say six of the seven friend of the court briefs that were filed in support the FCC’s efforts do not even mention the offending words by name. Instead in these g-rated briefs “circumlocutions such as “the F-word” to refer to the language in question.”³

To me most of this (ok, all of this) is silly and I think Jeff Ferrell in “Criminalizing Popular Culture” provides important insight into why.⁴ What Ferrell is talking about when he asserts that popular culture is being criminalized is a concerted effort on the part of those who view themselves as “moral crusaders” to demonize elements of popular culture and then to blame these “folk devils” as being responsible for crime and deviancy. These efforts are more often than not horribly misguided and provide at most a feel-good sense of doing something rather than actually providing any benefit to society because they are largely inorganic movements. While those leading the charge to push for the criminalization of a song like Ice T’s “Cop Killer” or an art exhibit of Mapplethorpe’s would have us believe that they are mealy responding to the public’s sense of those element’s criminality Ferrell points out that this is not true because most of the people calling for their criminalization have not actually been exposed to the cultural artifacts themselves but merely from the presented images of those cultural artifacts in the media or from an organization.

The clearest example of an organization inciting their members to action based not on their membership’s exposure to an actual culture artifact but just on the organization’s presentation of that cultural artifact is the Parents Television Council (PTC). With a membership base of around one million people the PTC wedges war against “indecency” by ending out e-mail alert to its members and providing a forum on their website which you can fill out to submit a an indecency claim to the Federal Communications Commission. With such a mechanism it is highly likely that members are often complaining about events, which they themselves did not actually observe but have only heard about because of the PTC’s campaign and the resulting media coverage of it. This type of advocacy coupled with the increasing use of e-mail and the internet has been responsible for an increase in complaints made to the FCC rising from only 111 in 2001 to nearly 170,000 in 2003 to 1,405,419 in 2004.⁵

A particular example of this faux-grassroots response to the FCC is instructive. In the January 2003 broadcast of the Golden Globe Awards Bono, lead singer of U2, in accepting an award made the comment “this is really, really, fucking brilliant,” which made it on the live broadcast uncensored. Out of a viewing audience of almost 20 million the FCC received only 234 indecency complaints, only 17 of which did not come from PTC members.⁶

Another important aspect to Ferrell’s theory of the criminalization of popular culture is recognizing that this is not a modern phenomena. While broadcast news and the new specialized medias of the web may be further encouraging this process we have just to look back in our own history and see a similar pattern with previous generation’s treatment of such cultural artifacts as zoot suits or the history of comic book’s presented in Amy Kiste Nyberg’s “Comic Books and Juvenile Delinquency: A Historical Perspective.”⁷ Both of these things are good evidence of the somewhat transient nature of such criminalization as both are treated as fairly benign cultural artifacts now but were the subject of past outrages and attempts to criminalize. It seems reasonable to assume that if there was truly a criminogenic element to these cultural artifices then we would still be just as interested in regulating them as we had been in the 1950s.

Does society really suffer from Cher saying “fuck ‘em” to her critics? Na.

[The rest of the court’s docket for the week is available at SCOTUSblog]

Legal Dictionary: Penumbra

penumbra [pi-nuhm-bruh] -noun (Latin: paenes “almost, nearly” + umbra “shadow”) 1. Astronomy. a. the partial or imperfect shadow outside the complete shadow of an opaque body, as a planet, where the light from the source of illumination is only partly cut off.

This is perhaps my favorite legal concept, not necessarily because of the jurisprudence behind it but because I think the imagery of the metaphor is beautiful. In a dark night when something moved completely between you and a light source you are in deepest shadow, this is called an umbra. As you start to edge out of that shadow and can just start to see the light cresting around the object that is blocking you from being in full illumination you are in a slightly less pitch black shadow, that shadow is called a penumbra.

It is the imagery of a state of just being on the verge of being fully illuminated that Justice Douglas called forth in authoring the court’s decision in Griswold v. Connecticut¹, the court’s most famous invoking of the idea of a penumbra:

In NAACP v. Alabama², we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, (dissenting opinion).³ Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Justice Douglas was not actually the first Justice to invoke the imagery of penumbras, the first citation I could find comes from a 1916 trademark infringement and unfair competition dealing with the selling of flour, Hanover Star Milling Co. v. Metcalf.⁴ While I had never heard of this case before trying to track down the earliest reference in the court to penumbras it does not surprise me that Justice Holmes wrote the reference in a concurring opinion, he always seems to have a smooth turn of phrase:

I think state lines, speaking always of matters outside the authority of Congress, are important in another way. I do not believe that a trademark established in Chicago could be used by a competitor in some other part of Illinois on the ground that it was not known there. I think that if it is good in one part of the state, it is good in all. But when it seeks to pass state lines, it may find itself limited by what has been done under the sanction of a power co-ordinate with that of Illinois and paramount over the territory concerned. If this view be adopted we get rid of all questions of penumbra, of shadowy marches where it is difficult to decide whether the business extends to them. We have sharp lines drawn upon the fundamental consideration of the jurisdiction originating the right. In most cases the change of jurisdiction will not be important because the new law will take up and apply the same principles as the old; but when, as here, justice to its own people requires a state to set a limit, it may do so, and this court cannot pronounce its action wrong.

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