Roundup of Reaction to Boumediene

The Supreme Court's ruling today declaring that Guantanamo detainees can appeal their detention in U.S. courts has triggered a bumper crop of reaction from groups and experts on both sides. Some of the commentary on Boumediene v. Bush is in our story at the Legal Times web site. Here are excerpts from other comments we have received.

Richard Samp, Washington Legal Foundation: "Today’s decision means that vital decisions regarding the handling of enemy prisoners are now in the hands of the judicial branch, the branch of government least capable of determining how the release of those prisoners will affect national security. The decision is an undemocratic exercise of power that rejects the national security determinations not only of Congress and the President but of a long line of Supreme Court decisions as well."

Sen Arlen Specter (R-Pa.): “The Supreme Court’s reaffirmation of the constitutional right to habeas corpus will now allow the federal trial courts to review each detainee’s case to see that individualized justice is done and people are not held in custody unless there is competent evidence to show that they present a terrorist threat.”

John Eastman, Chapman University School of Law: “The Court has taken upon itself review of military decisions that have never in our history been thought to reside in the judiciary. Chief Justice Roberts’ opinion systematically debunks Justice Kennedy’s legal analysis for the 5 justices in the majority, and Justice Scalia provides a stark window of insight into the harm that this decision will cause to our war effort.”

Lawsuits in defense of gay marriage can backfire, activist groups warn

Legal actions to make the U.S. or other states recognize California unions could lead to 'bad' rulings and setbacks in the movement, activists say.

By Maura Dolan, Los Angeles Times Staff WriterJune 11, 2008

SAN FRANCISCO -- -- With only a few days left before gays can marry in California, nine major gay rights groups asked couples Tuesday not to sue the federal government or other states to have their California nuptials recognized, saying that legal action could harm the marriage equality movement.

In an unusual six-page memorandum, written for same-sex couples, groups ranging from the American Civil Liberties Union to Lambda Legal warned that lawsuits would invite "bad" court rulings that could take years to overturn.State urges high court not to delay same-sexThe memo cautioned that the U.S. Supreme Court has traditionally refused to embrace major social change until many states have already acted and that the battle for marriage must be orchestrated strategically, state by state, court by court.

"Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer," the memo said.

Legal experts said the statement appeared to be an effort by groups who have successfully fought for gay marriage in California to maintain control of the litigation and reflected a fear that much of the rest of the country is not yet ready to embrace marriage for gay men and lesbians.
The memo "is a stark recognition of how their efforts have fared in the rest of the country any time the issue has been taken up in the ballot box," said John Eastman, dean of the Chapman University School of Law. "It is a tactical call that they are not quite ready yet in other states and not even in California to deal with the federal issue."

Twenty-seven states have passed constitutional amendments banning gay marriage, and only the high courts of California and Massachusetts have approved it. A ballot measure to reinstate California's marriage ban is headed for the November ballot.

"Eventually the U.S. Supreme Court is going to have to rule on whether states have to recognize same-sex marriages from Massachusetts and California," said Duke University law professor Erwin Chemerinsky. "What they want is to postpone that as long as possible because attitudes are changing quickly, and the more marriage equality gets entrenched, the more it is going to be widely accepted."

If the U.S. Supreme Court considered the federal Defense of Marriage Act, which permits states to refuse to recognize same-sex marriage in other states, the current court would likely split 5 to 4, with Justice Anthony M. Kennedy being an unpredictable swing vote, some scholars believe.

Gay rights groups aren't ready yet to take that risk.

Jon W. Davidson, legal director of Lambda Legal, called the joint statement "unprecedented," particularly since it came from so many groups.

The memorandum says marriage rights should be tackled first in state courts, and only in states with courts "that may be ready to do the right thing." Marriage cases are pending before the high courts in Iowa and Connecticut, and gay rights groups are hoping the legislatures of New York and New Jersey will eventually remove bans on gay marriage.

Advocacy groups were largely successful in discouraging lawsuits by couples who wed in Massachusetts and then sought to have their marriages recognized elsewhere. One same-sex couple from Massachusetts filed suit in Florida and lost. Now Florida voters are being asked to amend the state constitution to limit marriage to opposite-sex couples.

Unlike Massachusetts, California has no residency requirements for couples wishing to wed, and tens of thousands of same-sex couples are expected to travel to the state to marry. Experts believe that at least some will return home and bring legal actions.

Asked whether the memo was likely to prevent lawsuits, Davidson said: "I guess we'll just have to see whether it is successful or not."

The statement said that "early and unnecessary" court losses over marriage rights in Arizona and Indiana "hurt our other cases." Courts in New York, Washington state and Maryland narrowly rejected same-sex marriage and adopted some of the "contorted reasoning" from those decisions, the memo said.

"Because so far, more marriage cases have been lost than won, taking on a principled but long-shot case and racking up more losses now just makes it harder to convince other courts and legislatures," the memo said.

Mathew Staver, found of Liberty Counsel, which opposes same-sex marriage, predicted that once weddings start in California, the groups "won't be able to control the agenda anymore and there will be somebody, somewhere, not associated with the normal groups, that will file suit with the federal government."

Hoping to forestall such lawsuits, the advocacy groups promised that in a few years, same-sex marriage "won't seem like such a big jump" for courts and legislatures. In the meantime, the groups warned that court losses in marriage cases could reverberate into employment, adoption and custody law for gay people.

Instead of suing, same-sex couples should work against the California anti-gay marriage ballot measure and promote marriage rights in conversations with friends, co-workers, neighbors and employers, the statement said.

"With the victories in Massachusetts and California, we should be able to win marriage more quickly in other states," the statement said. "But we have to lay the groundwork."

Evaluation of Senate plan vs. that of Treasury

As you continue to evaluate the legislation emerging from the US Senate to address the housing crisis, I thought you might be interested in the thoughts of Timothy A. Canova, an associate dean and professor of international economic law at the Chapman University School of Law (you can find his bio at http://www.chapman.edu/law/faculty/canova.asp). Dean Canova, an expert on international monetary and other economic legal issues, offers the following thoughts:

I would say that it compares favorably with the Treasury Department’s recent proposals which merely called for lenders to voluntarily freeze interest rates for a month or two for homeowners facing delinquency on their loans. Treasury Secretary Henry Paulson has also called on credit-rating agencies to do a better job rating debt securities and derivatives. Finally, Mr. Paulson called for a review of capital standards for banks. All of these proposals were voluntary in nature, and rather unlikely to stem the housing slide. Perhaps they were not intended to do so. There are many in Washington, D.C. and Wall Street who would like to see the housing market find its own floor. The proposal for new capital standards could actually lead to further restrictions in bank credit.

The legislation emerging from the U.S. Senate would be a modest improvement over such administration proposals. Some of the proposals seem more designed to help special interests than to resolve the crisis in housing and mortgage markets. The tax benefits for homebuilders, in and of itself, would not result in any new spending or investment in construction. Other measures would presumably help increase the demand for housing, such as the new tax credit for homebuyers. The proposed $10 billion bond authority for refinancing subprime mortgages would presumably reduce the supply of unsold housing by reducing foreclosures. But with a housing market in the trillions of dollars, these amounts are but a drop in the bucket. Likewise with the proposal for $4 billion for state and local governments to help buy and rehabilitate foreclosed homes, and the proposal for $200 million in credit counseling for homeowners at risk of foreclosure.

The one potentially big proposal is also the most controversial: the proposal to amend the Bankruptcy Code to allow judges to rewrite the terms of existing mortgages, to lower interest rates, extend payments and cut principal payments. This is something that could actually address the hundreds of thousands of borrowers facing possible foreclosure. But it’s not surprising that there’s fierce opposition from lenders since this would essentially impose the costs of loan workouts onto lenders.

Other proposals introduced in Congress (by Senator Chris Dodd and Congressman Barney Frank, for instance) would seek to modify the terms of existing mortgages by having a government agency (either new or existing) purchase hundreds of billions of dollars in mortgages. This would transfer the costs of loan modifications onto the taxpayer.

It seems to me that any proposals that fail to modify the mortgages that are at risk of default (perhaps a million such mortgages at present time) will fail to achieve a floor on housing prices. As housing prices continue to fall, the pain will spread throughout the economy and labor markets, and to the fiscal positions of state and local governments as well. Free-market conservatives in the Bush administration and Republicans in Congress hold to the view that the market will correct itself, and therefore no need for the government to set a floor on prices. The costs and the pain would clearly fall on borrowers themselves. The Democrats favor more government intervention to set a floor on housing prices and arrest the downward spiral in credit markets and the economy. All seem to be divided as to who should pay the cost for setting a floor on housing prices, the taxpayer or lenders.