Angry New Yorker

Saturday, February 26, 2005
Noted on National Review Online's Corner: [no further comment needed, we think]

SALT SUIT NO JOKE [Jonathan H. Adler]As Andrew noted, the food police at Center for Science in the Public Interest are suing the Food and Drug Administration to force federal regulation of salt. No, this is not a joke. CSPI claims that salt -- the "forgotten killer" -- should be regulated as a food addititve by the FDA. The details of the lawsuit can be found here.

Friday, February 25, 2005
A New York State Supreme Court Recognizes The Judiciaries Limits. Who'd a Thunk It?

We've had a wide variety of commentors and commentaries to our postings here, but perhaps no issue provokes a more vehement response than same-sex "marriage." When we analyzed Justice Doris Ling-Cohan's decision last week (here) it grew rather heated on the comments section. Granted, we tend to shoot first and ask question later, but it was clear that no amount of rational argument would convince the opposing position.

So, we're rather glad, and somewhat vindicated, that another and wiser Supreme Court Justice correctly recognizes the proper limits of the judiciary, and basically says same-sex marriage is an issue for the legislature, not the courts. The decision is Seymour v. Holcomb, --- N.Y.S.2d ----, 2005 WL 440509, (N.Y. Sup. Ct., 2005).

According to the Feb. 24, 2005, Ithaca Journal:
Court denies Ithaca same-sex couples

Journal Staff

ITHACA -- Local same-sex couples have lost their first round in a legal battle seeking the right to marry in New York state.

The 25 couples and their attorneys learned Wednesday that State Supreme Court Judge Robert C. Mulvey has rejected their arguments, upholding the state's position and stating that decisions about extending marriage benefits rest with lawmakers, not the courts.

"Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best," Mulvey wrote. "If that day comes, it is within the province of the Legislature to so act."

Read the entire article here.

UPDATE: We finally received a copy of the decision, and in stark cotrast to Judge Doris Ling-Cohan's wandering missive, the opinion of Judge Mulvery is right on the money in applying current constitutional understandings and judical restraint. Some highlights:
The plaintiffs contend that the DRL's limitation of marriage licenses to opposite-sex couples establishes a classification which violates their right to equal protection under Article 1, Section 11 of the New York Constitution. They assert that this classification is based on gender as well as sexual orientation.
* * *
*3 The Court finds that the classification is not based on gender. See, Kane, Samuels and Shields, supra. Men and women enjoy equal rights to obtain a license to marry a person of the opposite sex; neither sex is advantaged or disadvantaged in the consideration of the license application. Each sex is equally prohibited from precisely the same conduct, i.e., marriage to a person of the same sex.

There is no basis in this record for the Court to declare that the plaintiffs are part of a "suspect class" triggering strict scrutiny of the classification.

Therefore the classification must be deemed to be drawn on the basis of sexual orientation. As such it is subject to the rational basis analysis.
* * *
The question presented is whether the plaintiffs have demonstrated that the promotion of opposite-sex marriage is not rationally related to any conceivable legitimate state interest. Although the plaintiffs present cogent arguments that same-sex couples are able to become parents by adoption or assisted-reproduction, they have not established that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing.
* * *
*5 The Court does not construe the Supreme Court's holding in Loving v. Virginia (388 U.S. 1) as the establishment of a fundamental right to same-sex marriage. There the Court held that a Virginia law forbidding interracial marriages deprived the plaintiffs of their fundamental right to marry, yet its decision was clearly anchored to the concept of marriage as a union involving persons of the opposite sex and clearly based on the invidious racial discrimination behind the law. Standhardt et al v. Superior Court of the State of Arizona, supra, at 283.

Since the classification at issue does not burden a fundamental right, it must be deemed constitutional if it bears a rational relationship to a legitimate governmental interest. As stated above, the classification does bear such relationship.
* * *
The decision to extend any or all of the benefits associated with marriage is a task for the Legislature, not the courts. Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. Lawrence v. Texas, 539 U.S. 558, 603, (Scalia, dissenting)(2003). If that day comes, it is within the province of the Legislature to so act.

Based on the foregoing, the plaintiffs' and municipal defendants' motions for summary judgment are denied and the defendant New York State Department of Health's cross-motion for summary judgment dismissing the complaint is granted.

Thursday, February 24, 2005
A friend wrote back in 2000:

NYC Olympics in 2012?
Does anyone care about the Olympics anymore? I mean really, between use of performance boosting drugs, addiction to the latest, greatest tech and equipment in order to shave a sliver off records, and athletes that are in every practical sense of the word professionals, what do the Olympics offer other than a massive world-wide opportunity to shill goods and generate soccer hooligan-like jingoism.

New York city is no stranger to world-class shilling and bombastic chest-thumping, so it’s no surprise that a local faction ( together a 600+ page proposal to sway the Olympic committee into giving NYC the 2012 Summer games. Perish the thought.

Pomp, posing and punditry worthy of a binding declaration of world peace accompanied the start of the Summer Olympics this week. If the Olympics come to New York, instead of the five interlocking rings as a symbol we could snip five subway tokens together. Given that the Olympics’ official motto is “Swifter, higher, stronger,” the range of possible NYC-centric events boggles the mind. Here's a few under the new motto of "Swifter ripoffs, higher costs, and stronger ant-acids."

100 Yard Cab Dash: Athletes in business suits line up on the corner of Broadway and 32nd. Two blocks away on Broadway and 34th a cab sits waiting. The gun goes off (a real one) and the melee race for the cab through a select and representative NYC crowd. The first person fully in the back of the cab wins. Some elbowing permitted. Clubbing with briefcases constitutes a disqualification, unless the ref. doesn't see it. Sponsor: NY Taxi & Limo Commission "Just Cab It."

Grand Central Hurtle: Many enter. Few finish. Starting at the lowest level of Grand Central's subway labyrinth, athletes sprint up the escalators from the 7 train platform, and then run from one end of the 4 train stop to the other hurtling over subway turnstiles. Finally, they run upstairs to Grand Central and dash for a MetroNorth train about to leave. The winner makes the train in time. Sponsor: NYC Metropolitan Transit Authority "Don't Mess With 40 Tons of Train"

NYC DMV Marathon: This grueling event is always a huge crowd pleaser. Athletes line up outside the Department of Motor Vehicles. At the crack of 8am the doors open and they rush to renew their drivers licenses. All of NYC is holding its breath in the hope the that last Olympic's record of 2 hours and 13 minutes finally falls. Sponsor: Former Mayor Rudolph "Our City Can Kick Your City's Ass" Guliani

Con Ed Shot-put: Only the strong survive. Athletes hurl a standard NYC manhole cover as far a possible while avoiding injury and lawsuits. Sponsor: Brooklyn Union Gas "We Gas It and You."

NYC Decathlon: The jewel of the NYC Olympics, the winner of the NYC Decathlon is granted the title "NYC's Fastest." The event traditionally begins at noon sharp on Wed. afternoon downtown in Battery Park. The first leg is affectionately known as the uptown 40. After Razor scootering up the FDR driveway for forty blocks, the athletes stop and fire their rifles at targets in Queens across the East river. Stopping only to throw their rifles into the water to slow later fingerprint analysis, they hop onto specially prepared messenger bicycles (you know, the ones with no brakes) and speed cross town to Penn Station with ten-pound delivery bags slung across their shoulders.
At Penn Station they wait to buy a one-ride metrocard and clamber for a local 1 train. For the forth leg the contestants pop back into the light of day at the last stop at the tip of north Manhattan, 10th Avenue and 214th Street. Focusing their eyes they sprint to pre-positioned cabs festooned with corporate sponsor logos.
The athletes drive, via the Bronx and Queens, back into Manhattan to arrive at Grand Army Plaza at 59th and 5th Avenue. The free-for-all final race across the 59th street bridge is the single most photogenic of all NYC Olympic events. Put it this way, it makes the combined chase scenes in The French Connection, Bullet and Die Hard look like a Sunday Soapbox derby in Iowa.

Rules: None. Sponsor: AllState Insurance "You're in Good Hands"

Monday, February 21, 2005
Why Does NYC Need the Olympics ? And Why is the Mayor So Gung-ho About Bringing the Olympics to NYC?

We oppose the Olympics coming to NYC in 2012. We're not getting worked up about the NYC 2012 offering (2012 Bid Book [available here] at the website.) NYC won't get the Olympics, so this entire exercise is nothing but smoke and mirrors.

Friday, February 18, 2005
Analyzing J. Ling-Cohan's gay marriage decision...

We've finally gotten around to reading New York Supreme Court Justice Doris Ling-Cohan's decision on gay marriage, Hernandez v. Robles, No. 103434/2004, discussed earlier in the month here and here. We're not impressed. For the first 23 pages or so, Justice Ling-Cohan's (hereinafter L—C) work reads much like a law student's moot court brief with nothing out of the dramatic. First, she decides that NY's Domestic Relations Law (DRL) doesn't support same-sex marriage because "both the inclusion of gender specific terms in multiple sections of the DRL, and the historical context in which the DRL was enacted, indicate that the Legislature did not intend to authorize same-sex marriage." Id. at 17.

But then the issue is to "whether the restriction of marriage to only opposite-sex couples violates the due process and/or the equal protection clause of New York’s Constitution." Id. at 22. And here Justice L-C veers sharply off the road. Although she rightly notes that "the protections of the New York Constitution extend beyond those found in the Federal Constitution, which sets the floor, but not the ceiling, for the rights of the individual," id., this isn't a mandate for the judiciary to become a super-legislature.

While Justice L-C recognizes that the right to marriage falls within a "liberty right" issue she completely runs off the rails in her due process analysis. Calling upon large doses of dicta from Supreme Court decisions, id. at 24-25, she compares same-sex marriage restrictions to racial restrictions on marriage. Following her rationale, it's difficult to see how any restriction on marriage would be constitutional within the issue of "whether the right to marriage is a fundamental right entitled to due process protection, both as a liberty right generally and, more specifically, as a privacy right. " Id. at 25.

In some very squishy logic, Justice L-C then returns to the right of privacy to link due process and privacy to a very broad right to marry, ironically calling upon Justice Kennedy's reference in Lawrence v. Texas, 539 U.S. 558, 574 (2003), to the much criticized "sweet mystery of life" passage by O'Connor, Kennedy and Souter in Part II of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833,851(1992). Id. at 27-28.

This reliance on the Lawrence language is even more ironic as Kennedy expressly stated elsewhere in Lawrence v. Texas that his argument was expressly not to be construed as supporting same-sex marriage, noting:

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.

Lawrence, 539 U.S. at 585 (emphasis added)

And as Justice Scalia sharply noted in dissent in Lawrence, "[w]e have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called 'heightened scrutiny' protection--that is, rights which are '"'deeply rooted in this Nation's history and tradition. . . ."'" [ed. note - clearly same -sex marriage cannot by any logical conclusion be viewed as "deeply rooted in this Nation's history and tradition" – though Justice L-C disagrees].

More confusing to the layman’s understanding, however, is how the court's conclusion that since the "right of privacy protects against unwarranted governmental interference with personal decisions relating to marriage" Hernandez v. Robles, at 29, this then bootstraps into a right to same-sex marriage.

In reaching her ultimate conclusion Justice L-C, however, keeps splitting hairs until she frames the fundamental right to marry analysis as "who may lawfully enter into a marriage relationship" and the question of "the right to choose whom one marries." Id. at 31. The Justice then decides that the obvious right that one may marry a person of one's choice extends to a person of the same sex under a "personal autonomy" rationale that "clearly falls squarely within the contours of the right of privacy articulated in Crosby, 57 NY2d at 311-12." Id. at 32.

Under this tortured stretching, Justice L-C next frames the question as:

Because the exclusion of same-sex couples from eligibility for civil marriage infringes the fundamental right to choose one's spouse, such exclusion may be sustained only if it serves a compelling state interest.

Id. at 33.

Didn’t Supreme Court Justice Kennedy just say that “preserving the traditional institution of marriage” was a legitimate state interest? Granted the magic words “compelling state interest” equate to the imposition of strict scrutiny in a constitutional analysis, whereas a “legitimate” state interest equates to generally a much lower rationale basis level of scrutiny. And granted states can confer broader rights under their own constitutions then under the U.S. Constitution, but the problem remains as we’ll see.

An additional problem for Justice L-C is she’s mixing apples and oranges here – throwing the fundamental right to marry and the right to choose who one marries into her hat along with the apparent extension of this fundamental right and the privacy right of adults to, then, presto-chango, pull out of her hat a NYS constitutional right of same-sex couples to marry, which is hardly a right “deeply rooted in this Nation's history and tradition. . . ." You see, she’s applying the strict scrutiny to the fundamental right of “marriage” and not the same-sex restriction component at issue. Whew! David Copperfield never had such magic in his bag.

But it gets worse. A major entire basis for Justice L-C’s conclusion that there is no compelling state justification here to deny marriage to same-sex couples hinges on the definition of “spouse.” Or rather her blatant redefinition of the word spouse to encompass marriages where both spouses are of the same sex. Having admitted that the legislature very clearly in NYS’s DRL and EPTL laws intended the word “spouse” in the context of marriage to be parties of different sexes, “[t]his Court concludes that, notwithstanding the absence of an express exclusion, the DRL does not authorize same-sex marriage,” id. at 18, Justice L-C none-the-less takes this constitutional analysis round-a-bout to arrive at a conclusion that was clearly forestalled by plain legislative intent. This, my friends, is the definition of judicial activism.

Her logic is thus: marriage is a fundamental right, which includes the right to choose one’s better half; this fundamental right is subject to strict scrutiny where any restrictions on it must be narrowly tailored to address a compelling state interest. And since principles of tradition can no longer be a compelling state interest, ipso facto, any restrictions on same-sex marriage are therefore unconstitutional.

To back up this conclusion Justice L-C cherry picks from other states’ decisions, from concurrences of Supreme Court decisions (which, by the way, for those who haven’t been to law school, are NOT part of the actual holding, but persuasive dicta), and from, frankly, her own circular conclusions and the stories of same-sex plaintiffs and such who’ve adopted children, etc.

In changing such a fundamental societal institution as marriage you’d rationally expect the burden to be on the parties seeking to redefine marriage to conclusively demonstrate the redefinition poses no harm, but Justice L-C conversely places the burden on the defendant to state that “[w]hile eloquently praising the indisputably central role that marriage plays in human life, neither defendant, nor amici indicate how that role would be diminished by allowing same-sex couples to marry, nor how the marriages of opposite-sex couples will be adversely affected by allowing same-sex couples to marry.” Id. at 37. The trouble is this isn’t the point, but a mere diversion.

However, read this:

“Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.”

Id. at 38.

The fact that we, as a society, permit single parents and same-sex couples to adopt children, is now justification for not extending the benefits of marriage to all parents? By this logic a single-parent should be able to be recognized as "married" (to whom I leave for another day) in order to get these self-same “legal, financial and health benefits that children of married couples receive.” Why not, right? Or is Justice L-C accepting that the definition of “marriage” does have some legitimate and/or compelling limit? In her lexicon marriage is then two people exclusively; different sex, same-sex it’s all the same. But how we can then deny the children in single-parent homes the “benefits of marriage” if the benefits are the be-all and end-all of obtaining marriage? Perhaps the state could step in as the other phantom, non-gendered spouse in single-parent marriages. Hello Mr. New York, and how are you today Mrs. New York?

But further, Justice L-C accepts here that New York does indeed have a state interest in providing “optimal environments for child-rearing.” And if this state interest is compelling, and the state decides that an optimal environment is in a traditional marriage of different sex couples, then state preference and support for same-sex marriage strikes me as either a legitimate or compelling reason for restricting marriage to same-sex couples. But Justice L-C simply whistles past the graveyard here and pooh-pooh's any such rationale by equating same-sex marriage restrictions with restrictions on same-sex sodomy. I kid you not. Justice L-C states:

[T]he question is not, . . . whether same-sex marriage is so rooted in our traditions that it is a fundamental right (it is not so rooted, of course). Indeed, to ask whether same-sex marriage is a fundamental right is to make the mistake that the Supreme Court criticized in Lawrence (539 US at 558), when it overruled Bowers v. Hardwick (478 US 186 [1986]).

* * *

Similarly, in the present case, the "liberty at stake" that is fundamental is the freedom to choose one's spouse. See id. at 558. Thus, for the State to deny that freedom to an individual who wishes to marry a person of the same sex is to deny that individual the fundamental right to marry.

Id. at 42-43.

Still scratching your head? Well, I had to stop my fisking at page 45, after Justice L-C flatly concluded “[m]arriage is no more limited by the historical exclusion of same sex marriage than it was limited by the exclusion of interracial marriage. . . ” with 18 more pages to go in her opinion. Justice L-C’s analysis of equal protection, frankly, boggles the mind and would get her a failing grade on this July’s NY bar exam. While I read the entire 62-page opinion very carefully, nothing in it from this point on changed my mind that Justice L-C was utterly incorrect in her holding.

As her decision is now on appeal to the New York State Court of Appeals, New York’s highest state court, and I can rattle off half-a-dozen reasons to reverse, I expect the Court of Appeals to set Justice L-C straight in short order.

More madness from the Manhattan Judiciary...

We're working to get our hands on the opinion to learn the actual holding's grounds , but while its true that the federal government can't "commander" state executive officers to enforce federal law (see Printz v. United States, 521 U.S. 898, 925 (1997) (holding "[t]he federal government may not compel the states to implement, by legislation or executive action, federal regulatory programs."), available at here), this strikes us a completely different situation.

In addition, if the Senate signs off on the recent House bill that mandates no driver's licenses for illegal aliens, then the Federal legisation would expressly preempt state laws on the issue and the fact that the state executives would, in theory, be required to do something, isn't a specific commandeering, but a standards setting, which happens all the time in Federal/State relations.
It's also interesting how the Time and the parties involved categorize this an "immigrant" issue, when everyone involved knows that it's an illegal immigrant problem, not an "immigrant" problem. If a citizen didn't have a social security number or adequate documentation necessary to get a license your denial wouldn't be an immigrant issue would it? Of course not.

The real issue, in our opinion, is the notice and hearing matter that's part and parcel of substantive due process claims. Many, though not all, license types are considered "property" for legal purposes, and therefore cancelling the license without an adequate administrative hearing runs into due process violations. It sounds like something along these lines was argued here. We'll see.

However, the fact that illegal aliens even have standing to raise this issue to gain a benefit that they shouldn't even have in the first place is infuriating.

From today's New York Times:

License Denials for Immigrants Are Blocked

A judge ordered yesterday that the state stop taking away the driver's licenses of immigrants in New York who do not have Social Security cards, saying that the Department of Motor Vehicles is not authorized to enforce immigration law or to make new rules without public notice.

The department began a license crackdown last year that was expected to result in the loss of driving privileges for as many as 300,000 immigrants in New York State this year and has already led to the suspension of about 7,000 licenses.

The order by Justice Karen S. Smith of State Supreme Court in Manhattan was temporary, but lawyers on both sides said it reflected her preliminary opinion that immigrant drivers would suffer irreparable harm unless the crackdown was stopped while the court considers a class-action lawsuit brought on their behalf, and that the immigrants' suit was likely to prevail.

It was filed last summer against Gov. George E. Pataki and Raymond Martinez, the motor vehicles commissioner, by the Puerto Rican Legal Defense and Education Fund. It was brought on behalf of New Yorkers who have been denied a driver's license or identity card for lack of a verifiable Social Security number or an immigration document satisfactory to the Department of Motor Vehicles.

* * *

Elizabeth Forman, an assistant state attorney general representing the government, said no decision had been made about whether to appeal the order, which temporarily bars the state from denying the renewal of licenses because of immigration status, but does not affect its handling of new license applications.

The judge's order also requires the state to give the plaintiffs 48 hours' notice before sending out letters suspending the licenses of tens of thousands of other drivers. As a practical matter, no more suspensions are likely to occur until after hearing April 7 on the plaintiffs' motion for a preliminary injunction.

Among those who sued the state are a 60-year-old licensed asbestos remover who worked in the World Trade Center cleanup, a teenage refugee from Albania, and the Irish father of an American-born infant who needs to be driven to medical treatment for her seizures.

Most are in the country without legal authorization, the court papers say, but two who are in the United States legally also were denied licenses by clerks without notice or chance for redress, the lawsuit said.

New York is among a dozen states that by law do not limit driver's licenses to legal residents. In the mid-1990's, to improve child-support enforcement, New York, like most states, added a requirement that license applicants provide a Social Security number.

Tuesday, February 15, 2005
National Review Online Looks at the Pataki Problem

There are some days, more frequent as of late, when we wonder why people bother to stay in New York. In the mid to late '90's we were huge proponents of the "New York City" mystique syndrome, even putting out a newsletter focused on NYC restaurants and urbanities. But that was before we began to wallow in the financial realities and dig into the politics of the empire state. And what we learned dropped the scales from our eyes and left us shuddering. John Miller in the latest issue of the National Review, here, takes a look at Gov. Pataki and comes away unimpressed, noting:
In January, George Pataki addressed the New York state legislature as governor for the eleventh time — and proceeded to deliver an interminable speech on creating more bird sanctuaries, building new ethanol facilities, and encouraging kids to exercise. In what turned out to be a major applause line, he announced: "This morning I signed an executive order requiring all state agencies and authorities to begin using non-toxic cleaning products." When Pataki finally focused on taxes — New Yorkers endure the highest tax burden in the country — he mostly bragged about the achievements of the past. His major new proposal was to accelerate the phase-out of an income tax increase — a tax hike that had occurred on his own watch.

While Pataki is only one member in the disfunctional troika that runs New York State (the other two being Senator Bruno and the sepulcurial Assembly Leader Sheldon Silver), there's blame enough for all. But Miller continues to observer that:

Somewhere along the way, however, Pataki lost his enthusiasm for this bold project [of cutting taxes]. Ten years ago, he had a chance to become one of America's great governors. But starting in the late 1990s, he devoted much of his energy to raising taxes and fees to keep up with state spending, arranging billion-dollar backroom deals with union bosses, and worrying about what kind of toilet-bowl cleaners swirl into the potties of Albany. Today, he presides over a state that just finished dead last in a survey of economic freedom conducted by Forbes magazine and the Pacific Research Institute. His tenure as the Empire State's chief executive began with incredible promise — but its legacy almost certainly will be one of squandered opportunity, shrunken ambition, and conservative disappointment.

The one truism that still holds in New York is that bold, big plans can make a difference -- as Mayor Guiliani demonstrated. It's to his lasting shame that Pataki decided to put pragmatism over doing what was best for New York long term. We'll all reap the results.

From today's Gotham Gazette...

Preliminary Mayor's Management Report for Fiscal Year 2005

The Preliminary Mayor's Management Report for Fiscal Year 2005, according to City Hall, "provides an early update of how the City is performing four months into the fiscal year," offering "performance highlights and statistics for agencies, as well as data on inquiries received by the 311 Citizen Service Center."

For full report, click here

Tuesday, February 08, 2005
Travel Outside the U.S. Instantly Just Got 3% More Expensive

You've probably already received, or will receive, a little insert in your Visa bill mailing this month that in the fine print includes a little notice saying that Visa will now begin charging you 3% of the total for all charges made outside the U.S. You are free, of course, to "opt out" by notifying your card issuer in writing, which, then, cancels your card at its next renewal time.

Monday, February 07, 2005
Maybe the Dutch Should Just Euthanize Themselves and Be Done With It

If there's any one country that personifies the tyranny of good intentions gone awry it's the Netherlands and the Dutch. This in from the Volohk Conspiracy, here:
Dutch Schools Ban the Dutch Flag

A Dutch newspaper article explains that many Dutch schools are forbidding the display of the Dutch flag. The Independence Institute's Dutch expert has produced an English translation of the article:

Ban on National Flag is Widespread.

More schools prove to have banned the national flag.

At the Groene Hart Lycee [an elite high school] in the city of Alphen-on-the-Rhine, the three colors that are the Dutch flag have been looked upon as evil for the past year. No symbols that identify specific groups are considered acceptable and any student may be permanently expelled for coming to school with flags on their clothing, shoes or briefcases. Earlier this week readers reacted with fury to another school in IJsselstein, this school forbids any display of flags because this would provoke students of other nationalities.

Read the entire thing here.

Sheez, if you can't even fly your own country's flag, how can you call yourself a country? The Dutch have one chance to pull out of their ongoing nosedive. I'd place the odds at 60:40 that they crash and burn.

With Logic Like Her's Who Needs Enemies?

We finally found a copy of Supreme Court Judge Doris Ling-Cohan's decision, Hernandez v. Robles, approving of same-sex marriage in New York City, we discussed here last Friday. A copy of the decision in Acrobat PDF is available here.

Even Jack Balkin, who does support same-sex marriage -- which Angry New Yorker most firmly does not -- harpoons the decision's feeble logic, noting:

Hernandez is a puzzling case on two counts. First, the Due Process argument is that the right of privacy under the New York State Constitution includes a right to marry, which the Court says is the right to choose whom to marry. But the problem is that this would undermine state laws regarding incest and polygamy as well, and the court makes no attempt to distinguish those cases from the case of same-sex marriage. Indeed, at one point in the opinion (p. 45), the court uses the example of polygamy to show that marriage has meant different things at different times and in different places. Perhaps the court really means to say that as applied to same sex couples, the state has provided no compelling reasons for restricting who may marry, leaving to another day the question of whether there would be compelling reasons in cases of incest and polygamy. But if that is the holding of Hernandez-- and perhaps it is the best reading of the case-- the point is nowhere clearly expressed. And what is puzzling about the opinion is that the court does not even seem to spot the difficulty.

The court also says that prohibition on same sex marriages violates New York's Equal Protection Clause. The court does not hold that the prohibition violates sex equality because it restricts the choice of a person's marital partner on the basis of one's sex. Rather, the court holds that the restriction violates the prohibition against discrimination on the basis of sexual orientation. The New York Court of Appeals has not held that discrimination based on sexual orientation requires heightened judicial scrutiny. Nevertheless, the court in Hernandez argued that the state of New York did not offer even a rational basis for excluding same sex couples from marriage. This part of the opinion is quite short and, because it is so short, it is not very convincing.

* * *

What the court says in Hernandez is mostly conclusory.

I have no idea whether this case will be affirmed by the New York Court of Appeals. But if it is affirmed, it will have to be for somewhat different reasons than the court gives here. The court has not given the New York Court of Appeals very much to work with. It will pretty much have to start from scratch.

I've met many extremely fine judges in the New York City Civil and Supreme Court system. Unfortunately, Judge Doris Ling-Cohan is not one of them. Now that we have the decision in hand we'll fisk it carefully.

Sunday, February 06, 2005
Quote of the Week...

Comes from State Senator John Sabini, a Democrat from Queens, in response to the dithering on legislative reform, which is so needed in Albany. He said:
I'll bet you that the Iraq National Assembly will have better rules than we have.
We certainly wouldn't want to take up that bet. We need top to bottom regime change in Albany. Where's Gen. Tommy Franks when you need him? Perhaps we can coax him out of retirement for a figurative assault on Albany.

A Little Help on Illegal Aliens

Today's New York Times runs an interesting post concerning illegal immigration on Long Island. As mostly first generation immigrants here at the Angry New Yorker command center we're very well aware that this country was founded, formed and built by immigrants. That goes without saying.
But what doesn't necessarily follow as a corrollorary, however, is that immigration levels should be either unregulated or untouchable. Humanitarian issues are one thing, and they're why we have asylum status for one class of immigrants, but turning a blind eye to the near-invasion levels of illegal immigrants (not migrants or undocumented workers) is neither in this country's best interests, nor the interests of other countries.

The article, A Little Help on Illegal Aliens, by James R. Edwards, Jr., available here, notes in the context of discussing Suffolk County Executive Steven Levy's recent request for help from the federal government that:

Immigration - both legal and illegal - is reshaping Long Island. The 2000 census found that 154,144 Hispanic residents live in Suffolk County, up from 87,852 in 1990. While county-level figures aren't available, census figures show New York State's illegal alien population rising to 489,000 in 2000 from 357,000 in 1990.

And with illegal immigration have come problems. Day laborers have flooded the streets, unlicensed contractors have been on the rise and houses and apartments have become overcrowded, with many no longer meeting building code standards. Last year, more than 10 percent of those arrested in Suffolk County were illegal aliens.

It's long past time that the federal government put illegal immigration on the front burner. Opposition to current levels of illegal immigration and support for enforcement and stronger measures cuts across all party lines. The real question is anyone in Washington listening.

Mayor Bloomberg's Overreaching...

We've commented previously on the City Council passing and the Mayor then signing new anti-gun legislation (here and here), which we view is completely unconstitutional as violative of existing dormant commerce clause jurisprudence. Today, Walter Olson weighs in with an op-ed in the New York Times, The Wrong Target, available here, noting the law could backfire on the panders here because:

This new law is too clever by half and it's also shortsighted. It insults the right to democratic self-governance of the 273 million Americans who don't live in New York City. Moreover, it may have a consequence that Mayor Bloomberg and other gun-control advocates have not foreseen: it could be further impetus for a bill in Congress, nearly enacted last year, which would pre-empt local efforts at gun-control through litigation.
* * *
Yet under the new ordinance, distant gun manufacturers and dealers could be made to pay damages for a shooting in New York City even if the presence of the gun here did not result from any bad acts of theirs. For example, under the new law, if a gun had been stolen in a burglary from a lawful Florida owner, the manufacturer and dealer could be legally responsible for death or injury to a person in Queens. Their only defense would be to show that they had adopted the city's stringent new guidelines, which go well beyond current federal law.
* * *
The mayor and City Council of New York seem to think they can make laws that bind the rest of the country. That's an arrogant stance - and when the rest of the country is heard from, it's apt to be a losing stance as well.

Unfortunately, the mayor and the City Council seem to think they're not only a statewise legislature, but a national one as well all too often.

Friday, February 04, 2005
Gay Marriage Coming to New York State? Strap In. New York City's Activist Judges Are At It Again.

And the democrats scratch their heads and wonder why republicans and conservatists don't trust the judiciary, particularly in New York City, where activist judges like Doris Ling-Cohan, who seems to enjoy issuing controversial decisions every few months, and is closely aligned with Dennis Rivera, unions and immigrants, have no qualms about stretching the law to reach their desired result.

Here's the New York State Constitution. You tell me where there's a right to same-sex marriage in it. In fact, Article I, the NY State Constitution's Bill of Rights, in section 11 states:

[Equal protection of laws; discrimination in civil rights prohibited]
§11. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938; amended by vote of the people November 7, 2001.)
Notice the Constitution says nothing about sexual orientation? Funny that, eh? And accepted rules of construction would not allow a reading in of sexual orientation. We'll be very interested to fisk Judge Ling-Cohan's opinion.

From today's NY1. com:

State Supreme Court Judge Clears Way For Same-Sex Marriages

A State Supreme Court Judge has made an historic ruling, clearing the way for five-same sex couples to marry. The couples filed a lawsuit last year, seeking marriage licenses in New York State. In a city courtroom Friday, Judge Doris Ling-Cohan ruled that the State Constitution requires same-sex couples to have equal access to marriage. The judge also ruled that the couples, who were represented by Lambda Legal, must be given marriage licenses.
UPDATE: As soon as we get a copy of the decision we'll analyze it and report back

UPDATE II: The New York Times reports today, here, that the city will appeal the decision.

Thursday, February 03, 2005
President Bush's State of the Union Was Masterful -- Democrat's Implosion Gathers Speed

As recovering democrats we're extremely embarassed by the daily democrat displays of carping, complaining and cavailing, which only demostrate that the democrats' implosion shockwave is toppling the entire party. That's fine by us; though we only wish the NYS democrat party would implode before they drag the entire state down with them.

Wednesday, February 02, 2005
We're in a New York State of Mind -- Debt that is...

When even the New York Times see the handwriting on the wall, you know it's serious...

Debt Is Soaring in Spite of Law, Hevesi Reports


ALBANY, Feb. 1 - For decades, New York State officials in both parties have favored a borrow-and-spend approach to government. It has some clear advantages: by foisting some of the state's skyrocketing expenses onto future taxpayers, it spares current taxpayers, who tend to remember things like tax increases around election time.

But that approach has left New York one of the most heavily indebted states in the nation, and on Tuesday, a state report painted an alarming picture of how bad the situation has become: the state's debt has grown to $46.9 billion in 2004 from $14.4 billion in 1990, a level that at $2,420 of debt for every man, woman and child in the state, is more than two and a half times the national average.

The debt has ballooned as the state's leaders have proven adept at circumventing the New York Constitution's requirement that voters approve state borrowing, and as the leaders have used their powers to borrow even during the flush days of the late 1990's.

In 2000, Gov. George E. Pataki and the State Legislature passed a law that was supposed to rein in the rampant borrowing. But State Comptroller Alan G. Hevesi said in a report issued here on Tuesday that state borrowing has only accelerated since then, as the state's leaders exploited new loopholes to borrow even more money.

Since the passage of that law, called the Debt Reform Act of 2000, the state has gone $12.2 billion deeper into debt, the comptroller found. And the new borrowing was in line with a disturbing trend in New York's finances: the state is increasingly borrowing to pay for short-term operating expenses instead of using it to pay for needed long-term capital projects, forcing future taxpayers to pay for services provided in the past.

Read the entire disturbing story here. We'll post a link to Hevesi's report ASAP.

UPDATE: Comptroller Hevesi's press release, Hevesi Proposes Sweeping Debt Reform, Including Constitutional Amendment, New York’s Use Of Debt Still Out Of Control, is available here. And the Comptroller's report, New York Debt Policy - A Need for Reform, Feb. 2005, is available as PDF, here.
According to the press release, the report's key findings include:

Total debt. State debt has grown from $14.4 billion in 1990 to $46.9 billion in 2004 and an estimated $49 billion in 2005.
  • Back-door borrowing. Voter-approved debt has decreased from 40 percent of the State’s debt portfolio in 1985 to eight percent today. Under the State’s constitution, all general obligation borrowing is supposed to be approved by voters.
  • Public Authority Debt. Most State funded debt is issued through authorities, $43 billion of the $46.9 billion. In addition, public authorities have another $70 billion of debt that is not supported by State revenues.
  • Debt per capita. New York ranks second highest in state and local debt per capita after Alaska, a state that benefits from its huge oil reserves.
  • Loopholes in 2000 reform. Because the Debt Reform Act of 2000 was riddled with loopholes, New York State has actually issued debt at a faster rate since the Act’s passage than it did before.
    • Since 2000, State debt has grown by $12.2 billion, bringing total State debt to an estimated $49 billion in 2005 from $36.8 billion in 1999-2000.
    • The Act set a goal of limiting debt to four percent of personal income, but since the law passed debt has actually increased from six percent to 6.5 percent of personal income. That’s because the Act does not count towards its limit all debt issued before 2000 and still outstanding and most of the debt issued since then.
  • Debt not counted in limits. Of the $12.2 billion issued since 2000, $7.7 billion is not counted as State debt, even though it is a State obligation: $4.6 billion tobacco borrowing, $2.6 billion to stretch out debt of New York City’s Municipal Assistance Corp., and $500 million to finance payments to 19 school districts for old claims. This debt represents 16 percent of the State’s $49 billion in outstanding debt.
  • Debt for operating costs. The 2000 Act properly mandated no borrowing for operating expenses. Despite that, the same $7.7 billion was borrowed to pay for operating expenses for the State, New York City and 19 school districts.
  • Borrowing in good times. Between 1996 and 2001, the State had annual surpluses of between $450 million and $3 billion. Instead of using those surpluses to reduce debt, the State actually increased borrowing. During that time, outstanding debt increased an average of 5.1 percent a year, while State spending increased an average of 4.4 percent a year.
  • Borrowing for legislative initiatives. The State separately authorized $2.8 billion for member items and local economic development from fiscal 1997 through fiscal 2005. These projects may be worthwhile and some are for local capital projects, but they do not create state-owned capital assets and should be paid for without borrowing, especially when the State has a surplus.
  • Pay-as-you-go. New York slashed its pay-as-you-go cash support to the capital program by almost half from 1994 to 2004, a period during which the state often had surpluses.
  • Bond rating. New York has the second-lowest bond rating in the nation, according to Moody’s.
    The sale of Attica prison is a case study in the irresponsible use of debt. The State borrowed $200 million to sell the prison to itself in 1990 and used the funds for operating expenses. Since 1990, the State has paid $242 million in debt service on the Attica debt, but due to refinancings, it still owes $323 million in principal and interest. So the total cost of providing $200 million in one-shot budget relief in 1990 will be at least $565 million, assuming the debt is not refinanced again.

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