The Bush-endorsed same-sex marriage amendment is officially dead. The senate voted today, 48 to 50 to defeat it. The vote was 12 short of the needed 60.

Both Kerry and Edwards opposed the amendment. Kerry has released this statement (via email from his campaign):

Predictable, but sickening:

President Bush says legalizing gay marriage would redefine the most fundamental institution of civilization and that a constitutional amendment is needed to protect it. A few activist judges and local officials have taken it on themselves to change the meaning of marriage, Bush said Saturday in his weekly radio address.

Leading the chorus of support for an amendment, Bush said, "If courts create their own arbitrary definition of marriage as a mere legal contract, and cut marriage off from its cultural, religious and natural roots, then the meaning of marriage is lost and the institution is weakened." His remarks follow the opening of Senate debate Friday on a constitutional amendment effectively banning gay marriage.

Hey, Mr. President, the Constitution is not a rough draft. It has served us well for 200 years. Leave it alone.

There will be a vote on July 12 on the Federal Marriage Amendment. Please call and e-mail your Senators to oppose it. We support the Human Rights Campaign to uphold civil rights --tell your Senators not to waste their time amending a fundamental document of American liberties in the interest of the Bush Administration's anti-gay agenda.

Don't let Bush and his extreme right-wing friends write discrimination into the Constitution. Stop the anti-gay Federal Marriage Amendment while you still can.

Finally....some good news to report this holiday. A new survey shows that support among Americans for First Amendment freedoms is back to pre-911 levels.

Americans’ support for their First Amendment freedoms — deeply shaken by the terrorist attacks of Sept. 11, 2001 — continues to rebound and is back at pre-9/11 levels, according to the annual State of the First Amendment survey, conducted by the First Amendment Center in collaboration with American Journalism Review magazine.

“The 2004 survey found that just 30 percent of those surveyed agreed with the statement, ‘The First Amendment goes too far in the rights it guarantees,’ with 65 percent disagreeing. The nation was split evenly, 49 percent to 49 percent, on that same question two years ago, in the survey following the ‘9/11’ attacks,” said Gene Policinski, acting director of the First Amendment Center.

Some specific findings:

Our cyber-sister Avedon Carol at Sideshow has a terrific idea for a t-shirt-- she just needs someone to help her make it.

by TChris

Will Thomas Joe Miller-El make a second trip to the Supreme Court? The justices granted his first certiorari petition and ruled last year that the Fifth Circuit erred by failing to grant him a "certificate of appealability" (a procedural requirement that permits an appeal from the denial of a habeas corpus petition only if a judge believes that "reasonable minds could differ" about the outcome of the case). Justice Kennedy, writing for an 8-1 majority, noted that Miller-El made a strong showing that prosecutors at his trial systematically excluded blacks from his jury, entitling him to pursue that issue on appeal.

Miller-El's case thus returned to the Fifth Circuit, which was unpersuaded that blacks were intentionally excluded from Miller-El's jury despite compelling evidence to the contrary and despite Justice Kennedy's strong suggestion that Miller-El deserved a new trial.

Not only did the Fifth Circuit fail to take Kennedy's hint, it also - and this is far worse, from the standpoint of judicial integrity - entirely ignored his logic. Indeed, its opinion adopts the analysis of the lone Supreme Court dissenter in Miller-El's case, Clarence Thomas.

Edward Lazarus makes a strong argument that Miller-El has earned a second trip to the Supreme Court.

[T]the Fifth Circuit's [decision] will also have the effect, if it is left standing, of nullifying the Supreme Court's central message in its Miller-El decision. And that message urgently needs to be heard: The Court was right to stress that the judiciary at every level should be more vigilant in policing prosecutorial abuse of the peremptory challenge system.

Law Prof Jack Balkin reports that you can now download the Constitution to your IPod. That's great news, but we'd like to see the NORML Foundation's Freedom Card downloadable as well. The card advises people of their rights when stopped by police. Here's the text. You can download the card in pdf here, and print four copies on a page. It's free.

The U.S. Constitution prohibits the government from interfering with your right to remain silent, to consult with an attorney, and to be free from unreasonable searches and seizures by law enforcement. However, it is up to you to assert these rights. This NORML Foundation Freedom Card will help you do so effectively.

If you are confronted by a police officer, remain calm. Be courteous and provide your identification. Politely refuse to answer any further questions. Ask to talk to an attorney. Do not consent to any search of your person, your property, your residence or your vehicle. Tell the officer you would like to give him or her this card, which is a statement of the constitutional rights you wish to invoke. Do not reach for this card until you have obtained the officer's permission to do so.

If the officer fails to honor your rights, remain calm and polite, ask for the officer's identifying information and ask him or her to note your objection in the report. Do not attempt to physically resist an unlawful arrest, search or seizure. If necessary, you may point out the violations to a judge at a later time.

Any suggestions for who should rap the card?

A federal judge in Tennessee has ruled a local statute unconstitutional that required tarot card readers to issue a disclaimer to customers because it infringes on the First Amendment's guarantee of free speech:

A federal judge struck down a law requiring fortunetellers to post disclaimers on their shops and advertisements, calling the ordinance an unconstitutional restriction on free speech. U.S. District Court Judge Robert Echols, ruling in favor of former tarot card reader Beth Daly and the American Civil Liberties Union, rejected the city of Dickson's argument that its law was intended to protect citizens from fraud. Echols cited earlier rulings that determined "predictions are only fraudulent if the speaker knows of facts that will prevent a prediction from coming true."

Within a month of the shop's opening in July 2002, Daly was told city law banned her from telling fortunes for a fee. She shut down, but pressed ahead with the lawsuit filed by the ACLU. The city repealed its law in 2003, apparently deciding that defending its ban "was not in the cards," Echols noted in a recently filed memorandum. But it replaced the ordinance with a new one requiring fortunetellers to post a disclaimer stating Tennessee has no requirements governing "the education, training or ability of fortunetellers, clairvoyants, palmists, phrenologists or other person claiming to be mystics endowed with supernatural powers." Though the city argued the disclaimer would protect customers from fraud, Echols determined it was an overly broad restriction of freedom of speech.

If you're looking for a deck, this one is our personal favorite. It gives strong emphasis to both the Kabbalah and the astrological signs and planets. We still have our deck from 1971, that we got in Ann Arbor, wrapped in the same silk scarf we bought the same day. Just remember, it's the wise man who rules his stars, and the fool who obeys them.

by TChris

The Eighth Amendment provides: "Excessive bail shall not be required ..." That doesn't stop judges from setting bail in amounts that poor and moderate income defendants can never hope to raise. The amount of bail deemed "excessive" is often in the eye of the beholder, and the beholder is usually the judge who sets (or denies) bail.

Unless the bail is $3 billion (yes, billion with a B), a laughable amount that even New York real estate heir Robert Durst can't afford. A Texas jury found Durst not guilty of murdering his neighbor, but Durst still faces less serious charges of bail jumping and evidence tampering.

Durst's attorneys appealed the bond amounts to the 14th Court of Appeals in Houston, which said in a ruling Tuesday it could not find a case where bail was set, let alone upheld, at even 1 percent of any of the amounts against the millionaire, "regardless of the underlying offense, wealth of the defendant, or any other circumstance."

"Considering the unprecedented enormity of the bail amounts and that any flight risk has been abundantly addressed by other bond conditions, we can find no conceivable justification for bail amounts remotely approaching the order of magnitude of those imposed in this case," the appeals court ruled.

The court suggested other ways to assure that Durst doesn't flee, including taking his passport and making him pay for his own 24-hour guard.

by TChris

As a general rule, the police can't enter your home without your consent or a warrant. But what about your garage?

In a minor victory for the Fourth Amendment and for the right to privacy (a victory fairly characterized as a "no-brainer"), the Minnesota Supreme Court ruled that a police officer had no right to stick his foot under a closing garage door, causing the garage door to raise so that he could talk to the driver who had just driven into the garage. The officer hadn't seen the driver engage in any bad driving (and thus couldn't claim he was in "hot pursuit" of the driver), but wanted to talk to the driver about a report that he'd been seen weaving while driving home. The driver closed the garage door without realizing that the officer was standing at the threshhold.

The decision addressed constitutional issues of appropriate search and seizure and determined that a person's right to privacy extends to his garage "because it is not impliedly open to the public."

Sadly, this isn't going to deter the Farmington Police Department from doing the same thing in the future. Chief Dan Siebenaler says he "respects" the court's decision but he doesn't think the officer did anything wrong and he doesn't intend to change the department's policy. Saying "never mind the courts, we'll do what we wanna do" doesn't seem particularly respectful either of the courts or of the Constitution.

by TChris

"Out of step" doesn't quite do justice to Justice Scalia's thinking about the Constitution. He's made it clear that he doesn't believe abortion is constitutionally protected, and he likes to complain that there's no constitutional "right to homosexual sodomy." But those are controversial issues, and Justice Scalia seems to thrive on controversy.

More frightening is Justice Scalia's belief that criminal defendants are not entitled to a lawyer unless they can afford to hire one. Sorry Mr. Gideon, you'll have to do the best you can on your own.

by TChris

Roy Moore, the former Chief Justice of the Alabama Supreme Court who lost his job by insisting that his desire to display the Ten Commandments on public property was more imporant than the Constitution, lost his latest bid to get the job back. Seven retired judges, serving in lieu of the Alabama Supreme Court over which Moore once presided, rejected his appeal from an ethics panel's order removing him from office.

Moore argued that federal courts have "no right to interfere in states' acknowledgments of God," a position that reads the Supremacy Clause out of the Constitution. Federal courts have not only the right but the duty to enforce constitutional protections when confronted by state officials who prefer to ignore them.

Unfortunately, we haven't heard the last of Moore.

Moore is behind a bill before Congress that would prohibit federal judges from hearing cases involving acknowledgments of God. The measure was expected to be heard by the House Judicial Committee later this year.