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Washington State Likely to Legalize Same-Sex Marriage

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The Washington State Senate has just passed a bill that would legalize same-sex marriage in that state. The state’s governor has already stated that she plans to sign it.

If this bill becomes law, Washington will be the seventh jurisdiction in the U.S. to recognize same-sex marriage. The others are currently Massachusetts, Vermont, Connecticut, New Hampshire, Iowa, New York, and Washington, D.C. In addition, the state legislatures of New Jersey and Maryland are currently considering bills that would legalize same-sex marriage, both of which are thought to have a pretty good chance of passing.

Anyway, after passing the State Senate, the bill must go to the State House of Representatives, which is expected to easily pass the bill. But once this happens, and the governor signs it, it still has a long road ahead before actually becoming law.

As in every state that has a voter initiative process, and has also legalized same-sex marriage, opponents of the law are pledging to gather signatures to put the issue on the ballot, and present it to voters for a final decision. Opponents of same-sex marriage have until June to gather enough signatures to get a referendum onto the November ballot. Apparently, the law will go into effect, at the very earliest, in June, if and when the supporters fail to get enough signatures for the referendum.

If they do get enough signatures, the law will be on hold until the November election, and the issue is decided by Washington voters once and for all. Many opponents of same-sex marriage are optimistic that the law will be rejected by Washington voters. They accurately point out that every state that has voted on same-sex marriage has rejected it. Early polls, however, suggest that Washington is well-situated to be the state that breaks that streak. According to the latest poll, 55% of Washington voters would vote in favor of same-sex marriage.

I’ve said time and again that I strongly support marriage equality, and I’m heartened to see that, over the last year or so, momentum has strongly shifted in favor of nationwide legalization of same-sex marriage. Of course, it will be at least years (and more likely decades) before same-sex marriage is legal nationwide. However, with the repeal of Don’t Ask, Don’t Tell taking full effect (and completely without incident), and at least one nationwide poll suggesting that a slim majority of Americans support same-sex marriage, I’m confident that full marriage equality will come to the United States in my lifetime.

In the meantime, however, marriage equality will progress on a state-by-state basis. However, if Washington voters approve marriage equality (being the first voters in the U.S. to do so), it will probably be remembered as a watershed moment, and embolden supporters of marriage equality in other states to attempt to bypass courts and state legislatures, putting the question of same-sex marriage directly to the people, and perhaps finding a more receptive audience than ever before.

However, whenever you’re discussing same-sex marriage in the United States, there’s constantly an elephant in the room: the federal Defense of Marriage Act (DOMA).

DOMA is a federal law that was passed in 1996, and remains in effect today. It prohibits the federal government from giving any legal recognition to same-sex marriages, even if they were performed by states that recognize such unions. While this law is currently being challenged in court, the process is going to take a while, and the outcome is uncertain. Furthermore, given the political climate in D.C., it’s highly unlikely to be repealed any time soon.

As long as DOMA is in effect, same-sex couples, even if they’re legally married in a state, cannot receive any of the benefits that the federal government offers to individuals simply by virtue of being legally married.

These include several financial benefits, including the right to jointly file federal income tax returns, spousal benefits for federal employees (including healthcare, life insurance, etc.), and survivors’ benefits for the spouses of military service members killed in action. All of these federal benefits are, by law, completely unavailable to same-sex married couples.

DOMA is currently being challenged in court. Most federal court challenges to this law stop short of arguing that there is a constitutional right to same-sex marriage. Instead, they argue that the federal government has traditionally deferred to the individual states on matters of family law, including the recognition of marriage. So, the federal government should have to defer to the states on same-sex marriage, as well. If successful, the federal government would have to recognize same-sex marriages legally performed in a state. But such a ruling would not compel every state in the country to perform same-sex marriage. This path probably has a better chance in the Supreme Court that an argument that there’s a nationwide constitutional right to same-sex marriage.

In any case, it looks as if Washington is going to be yet another stepping stone on the road to full marriage equality. However, the legal situation remains extremely complicated, and raises some interesting constitutional questions dealing with federalism and equal protection. You can count on continuing coverage of these issues right here as new developments come.

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Towns Creating Their Own Currency May Violate The Constitution

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It’s no secret that times are tough.  Everyone’s hurting for money and people are always looking for ways to cut corners, while also earning some more dough.  Apparently, some towns have figured out a much better and faster shortcut to solve their community’s cash woes: print their own money.

Alright, you got me, my lead-in paragraph was a little deceptive.  It’s not really a complete contravening of the federal currency system (but in some cases, it’s pretty darn close).

Regardless, it’s an interesting trend to say least.  Small towns across the country from Massachusetts to New York to Oregon have started printing out their own version of currency to be used within their community.  One might be thinking: what would be the point seeing as we already have a national currency that works fine right now (other than the constant inflation, of course).

It’s not as pointless of an exercise as it might initially seem to be.  These local currencies generally hold a higher exchange rate than regular old US dollars in their respective communities.  For example, in Southern Berkshire, Mass., that town’s created currency, dubbed BerkShares, trades at 100 BerkShares to $95.  The little bit of extra money can go a long way in these hard times of ours.  And so far in the communities that have started currency programs like it, spending has gone up within these respective towns injecting some much needed money into their local economies, while also allowing residents to get a little more bang for their buck.

Now it’s always nice to hear when financially struggling people, or in this case a town, figure out a way to help dig themselves out of the red.  However, since this is a law blog, you’ve probably already deduced that I’m likely about to say something to ruin the party.

And you’d be right.  Because as far as I can tell, I’m pretty sure what some of these towns are doing may very well be in direct opposition to the Article I, section 10, clause 1 (aka the Contract Clause) of the U.S. Constitution, which states in relevant part that “No State Shall . . . coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts . . .”  The Contract Clause basically makes it unconstitutional for states to make their own currency, as the power to coin money is one that is reserved for the federal government.

Yeah, I know, I’m a party pooper.  But before you guys start tossing your hate mail at me, let me reiterate that these currency programs only might be unconstitutional.

The link I put up shows ten towns that have enacted their own form of currency.  Of the ten, nine of them seem to be perfectly constitutional because their currency acts more like a bartering or discount services program, ala a Groupon or Living Social deal, rather than a usurping of congressional power.  These nine currency programs were started privately by individuals or organizations who worked out deals with local business to accept their currency which in turn was “exchanged” or rather purchased by locals using actual dollars.  In this sense, these nine currencies are more akin to privately sold coupons than actual money since there are fewer places that actually accept them and treat them like money.

The main issue I have is with Southern Berkshire’s BerkShares, as that one seems to be closest to functioning as actual money.  Over 13 banks in their town accept and deal in it; these banks charge a percentage fee to exchange them, over 400 businesses in town accept them and there have been over 3 million BerkShares issued since the currency was launched in 2006.

However, the most important characteristics that set BerkShares apart from other local currency is that it appears to be endorsed by the local town’s government body and it also is more valuable than U.S. dollars in the community since $95 will get you 100 Berkshares.  These two characteristics of government authorization and devaluation of US currency have been viewed by the courts to be essential to the determination of an illegal currency.

Now it might not seem like a big deal if a town wants to create its own money, but it really is.  The reason is because the creation of unauthorized currency can cause financial instability in the country.  For instance, if a state is independently wealthy using its own money, it would have less incentive to adhere to federal guidelines.  It would in a sense become its own true sovereignty, and while states do have this right to some extent under the Constitution’s state police powers, allowing a state to print its own currency is a step too close to succession.

For now it doesn’t seem like too big of a deal to the federal government as no one other than me appears to have noticed this possibly unconstitutional action over in Southern Berkshire.  It’s helping their community and so far hasn’t led to any declarations of independence, so I guess more power to them.

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Arizona Bans “The Tempest” and Any Other Book that Might Encourage Discussions about Racism

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Arizona is on a roll. First, it passes one of the most restrictive anti-immigration laws in the country, on the (false) premise that the federal government is becoming lax in its enforcement of existing immigration laws. Its largest county continues to elect a sheriff who blatantly disregards the constitution, and fails to investigate hundreds of sexual assault cases because he’s devoted all his resources to going after immigrants.

And now, another one of that state’s brilliant and not-at-all-racist laws is having some…interesting consequences. A recent state law bans public schools from teaching ethnic studies courses. This effectively bans schools from teaching subjects like Mexican-American studies.

The law officially bans public schools from teaching any subjects that “promotes the overthrow of the United States Government, promote resentment toward a race or class of people, are designed primarily for pupils of a particular ethnic group, or advocate ethnic solidarity instead of the treatment of pupils as individuals.” Taken at face value, this law seems pretty reasonable. However, it’s had the effect (which was its intended effect) of banning just about any class that seeks to educate students about other cultures.

An Arizona court has just ruled that Shakespeare’s play The Tempest cannot be taught in class. This is because The Tempest is about a banished duke who seeks revenge through magic, and deals with themes such as colonialism, slavery, and racism. Apparently, it’s just not OK to discuss those subjects in the classroom.

As you can imagine, I’m not in favor of this action, or the law that prompted it. I’m not sure what’s going on in Arizona, but it’s definitely nothing good. In a school district where close to 60 percent of the students are Latin American, a law that effectively bans schools from teaching students about that group’s history and culture sends a pretty clear message, whether it was intended or not: your culture has so little value that we feel the need to ban public schools from teaching any classes about it.

Laws like this will probably be short-lived, as Latin-Americans are by far the fastest growing demographic in Arizona, and contrary to the apoplectic ravings of talk radio hosts, most of them are there legally, and of those, a large percentage are U.S. citizens, meaning that they can vote.

To be honest, I don’t even have much of an opinion on the educational value of ethnic studies programs in public schools. However, this law pretty obviously is not motivated by an honest, good-faith belief that these programs lack educational value and that school resources are best spent elsewhere. It seems to be motivated by antipathy towards, or at least suspicion of, Latin-American culture, and Latin-Americans in general.

From a legal standpoint, however, I don’t know if there’s anything that can be done to stop this. States are free to regulate the curriculum of public schools, and there’s nothing in the Constitution that stops them from doing so. Unless Arizona begins segregating its schools by race, it’s unlikely that the federal courts can do anything about it. And, frankly, I think it might be counterproductive for the federal courts to intervene at this time.

We live in a time where many people are extremely suspicious of the motives, and even the very legitimacy, of the federal government. So, if the federal courts were to intervene, there’s a chance that Arizona officials could simply refuse to comply with whatever the court orders, regardless of the order’s legal merits. This would leave the federal government with an incredibly unpleasant decision: give the government of a state a pass on obeying the law, or taking more forceful measures to enforce a court order.

Given the current political climate, nobody wants that.

Ultimately, I hope that our country moves past this nativist, xenophobic phase we’re going through. It seems that we go through a phase like this every few decades, and they usually coincide with economic hardship and/or social unrest. And they eventually pass.

Hopefully, what we’re seeing now is also just a phase. Of course, I should note that the concerns that these laws, and others like them, mean to address are not entirely imaginary. Illegal immigration is a real issue, and we need a sane policy to deal with it. Personally, I think that the solution to illegal immigration, to the extent one exists, is to simplify the entire immigration process, and to make it easier to come into this country legally.

I hope, in the long run, that cooler heads will prevail on the issue of immigration.

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Why SOPA Will Turn The Internet Into A Television

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It’s a sad state of affairs when our country’s internet might become more censored than China’s.  Because that’s apparently the kind of plan that Texas senator and professional hypocrite Lamar Smith has in store for the country with his Stop Online Privacy Act bill.  Thankfully though, our president along with those still looking out for our Constitution appear to have taken enough action to likely put SOPA down before it becomes law.

On paper, SOPA might initially seem like a good idea.  That’s because much like every bill introduced in Congress, SOPA is couched in patriotic, agreeable language that ultimately tells the public nothing about its horrible insides.

If you haven’t been following the news and haven’t heard of SOPA, just pop those letters into Google and watch your screen explode with results.  The bill proposes to end online piracy of movies, books, television shows, music, etc. by criminalizing the streaming/transmittal of such copyrighted content.

Now again, this might sound like a good idea at first.  Online piracy is costing our country’s economy millions of dollars in taxes, not to mention even higher figures for those who produce the material.  SOPA would likely impede a lot of it by way of the bill’s strict criminal penalties.

However, the trade off is far worse as passing it would undoubtedly change the way the internet is used forever, or at least until SOPA is repealed.  The internet under SOPA would no longer be a place for the free exchange of ideas; rather it will become a commercial venue for companies to reap high revenue while leaving users with a world wide web more akin to a television set than the internet we know today.

How would SOPA do this?  Before we get to that answer, it’s important to first discuss the way television works.  Yes, I’m aware everyone out there knows how to work a television, but humor me.  Television delivers content to viewers via a fixed one way path.  It’s fixed in the sense that what we see on T.V. is controlled completely by the stations and studios that produce and broadcast the programming we see.  In this sense, other than our ability to change channels, viewers have no control over the content that will appear from the television.  The T.V. is a fixed medium in which corporations have full control of both the content and advertising that is transmitted.  Sure, people can buy cable or spend money on getting premium channels like HBO, but in general everything that we see has been carefully vetted and controlled.

The internet as it is today, on the other hand is the exact opposite of television.  It’s a non-fixed medium in which any user may create, post, and view the content created and posted by other users.  It’s a medium in which corporations and the general public are on equal footing in terms of reach, in that anyone who has an internet connection can view both a commercial website or a person’s personal web page without having to pay anything extra to do it.  There’s no barrier to entry, anyone can post anything, as long as it doesn’t violate our country’s law.

This is where SOPA comes in.  If the bill somehow were to pass, the stiff penalties it carries would change the internet into a slightly more interactive television set.  You see, SOPA would make it a criminal offense for anyone to post copyrighted material.

Copyright content is vast: it’s not just movies, T.V. shows, or music; it’s also pictures, poems, news articles, short stories, pretty much any type of content that can be created by people can also be copyrighted.

For example, if one were to change their profile picture on Facebook to an image of Optimus Prime from Transformers and the image is one that has been copyrighted by Hasbro, the current owner of the Transformers property, that Facebook user’s page could be shut down.  And if everyone on Facebook did the same, under SOPA, all of Facebook could be shutdown too for copyright infringement.

YouTube, forget about it, that site would be down faster than a piñata full of hundred dollar bills at a birthday party.  SOPA would also make it illegal for sites to even link to pages that contain copyright infringing materials.  This means a search engine, like Google, could no longer bring up all the pages that it finds for us every day.  Furthermore, even if someone were to try to go directly to a website with some infringing content, under the broad language of SOPA, internet service providers would be required to block access to those websites.

So what kind of internet would we be left with it SOPA were to pass?  We’d be left with a television that we can type on.  It would be an internet run by corporations, where any time we want content, we’d have to go directly to the only source that produced it.  We’d have to suffer through their advertisements, registration requirements, and in all likelihood we’d also probably have to pony up some cash on top of it all.

The message here is a simple one: SOPA is bad for the internet.  But of course, that’s just my opinion.  Though in this case, I’d find it hard to imagine if anyone other than a corporation would disagree with me on this point.

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The TSA May Be Using Your Spare Change to Help Our Troops

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The LegalMatch Law Blog has kept up with the happenings of the TSA, which has often been in the news.  The Transportation Security Administration (TSA) is making headlines yet again due to a proposed bill which will allow the TSA to give the United Service Organizations (USO) spare change found in the bins at airport security check points.  This bill has sparked a heated discussion.  After all, in an economy like ours, there is bound to be many opinions on what to do with extra large sums of money.

For most of us, when we see spare change lying around, we rarely think it could add up to a substantial amount.  Well, most of us are wrong!  In 2010, loose change left in the rectangular plastic bins we all throw our stuff in at airport security check points totaled to $376,480.39!  In 2009, this amount was over $399,000!  Apparently, one person’s spare change is turning in to the TSA’s treasure.  Recently, Nico Melendez, a TSA spokesperson, informed people that the unclaimed change is being turned over to the TSA finance office.

Jeff Miller, the chairman of the House Committee on Veterans’ Affairs, has introduced a bill that would allow the TSA to transfer the unclaimed money to the United Service Organizations (USO).  The USO is a private nonprofit organization that operates centers for the military at various airports around the United States.  Miller’s reasoning is that the money left behind belongs to the taxpayers and therefore it should be put to good use.  There can be no better use than giving the money to the USO to help with airport service for active military members.  The bill is currently being considered by the Department of Homeland Security and Transportation.

This bill has sparked a heated discussion amongst many.  Proponents of the bill feel that it is very noble for American taxpayers to contribute to the troops and their families.  The USO’s Senior Vice President, Frank Thorp, stated that any funds will be used to provide comfortable areas where troops and their families can get in touch and spend time together.

Proponents feel that not only is this cause noble, but also well-deserved.  If troops can travel to different countries and risk their lives fighting for the citizens of this county, can we not show our appreciation by providing funding to ensure comfort while getting in touch with their loved ones?  Is this not our duty?  Many feel that it is.  We, as Americans, have a duty to show our appreciation to our wonderful troops.

Opponents feel that the TSA has no right to use the money.  They claim that the TSA has already troubled passengers with invasive search methods and should not be rewarded for doing so by being given control of such large sums of money.  Rather than allowing the TSA to keep the money, it should be donated to charitable organizations or used in making airport procedures more efficient to ease the experience of travelers.

There is of course a compromise that can be considered.  Some of the money can be donated to the USO, while another sum can be donated towards making airport procedures more efficient to increase the convenience of travelers.  For opponents who feel that the TSA should not be in control of such large sums of money, they can push for having signs near security check points cautioning travelers to check the security bins carefully before rushing off to the gate.  A simple “check for loose change” sign can help certify that travelers’ money remains with them at all times.

The possibilities for other compromises between the two views are endless.  If this bill gets passed, which may be surprising since it was not given much attention when it was first proposed in 2009, then knowing that our money is being contributed to helping the troops is a great thing.  Either way, knowing that such a large amount of money can, and will be used towards some charitable goal is a great thing.  In the end, it seems like a win-win situation for all.

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