Month: August 2010

From Mike Luckovich at the Atlanta Journal-Constitution.

A reader writes:

I live in California and I am excited about the ruling that came out yesterday. A couple weeks ago, my partner and I spent two weeks in Berlin and on our return, she was told by the US immigration officer that we were not family. Our family is transnational (I am on a US work visa), interracial (I am African she is Caucasian) and homosexual. Traveling is a source of stress for us because, in addition to me needing three visas for a two-week vacation, my partner and I often get separated like we did at SFO.

Since the government allows one family to fill out one customs form, the idealist in me and my (jet-lagged and ill) partner who did not want to deal with anything, decided to filled out one form. When we got separated I had it, she did not. Anyway, when the immigration officer on her end asked for her customs form, she told him I had it. He asked if we were married and she said we were domestic partners to which he responded "That is not family". While I do not let anyone definite anything for me, he is right, legally, federally, we are not family. We can't get married and I can't immigrate here by marrying her (fortunately I can through work in science). She is a second class citizen and I am a second class legal alien.

From a 59 year old gay man who has watched the movement since Stonewall:

I’ve been watching battles for a long time and found two things to be true: 1) we almost always lose. 2) you look back every five years and we’ve made significant progress. This will be no different. This court decision was a genuine victory.

A lawyer writes:

I really, really hate – as in, this is extra special slimy, even for them – the fact that only now, since the Prop 8 proponents have lost, is the whole "he's gay, should he have recused himself" meme starting to take hold. Folks, if you think your judge should recuse himself, you put on your big boy or girl pants and you file the damn motion. 22 years ago I did a jury trial for a client who was charged with molesting his kid. The judge originally assigned had handled the civil restraining order, and I felt that created bias, so I filed a motion to recuse, which he granted. (By the way, with a different judge, the jury acquitted in 55 minutes.) About a week later, I ran into that judge and started to apologize for the motion. He cut me off before I could finish and he said, "You should never, ever apologize for doing your job. Ever." The point is this: if you are a good lawyer, and you've got grounds, you file that motion. And if you don't file it, either a) you're not a good lawyer, or b) you got no grounds in the first place, and you know it.

And the Prop 8 proponents knew it. And didn't file it. Because there was nothing to file. It's no more bias to be gay in this case than it would to be African American, Latino, Jewish or female in a discrimination case. This is a smear. And a cowardly smear at that. Nothing less.  

Another reader:

If straight marriages like mine are truly impacted negatively by gay marriage, as many Prop 8 supporters claim, then a straight judge would have to recuse himself as well. He'd HAVE TO – because his group would (supposedly) benefit from Prop 8. If black judges shouldn't be deciding civil rights cases because they benefit from the outcome, then white judges shouldn't either, because civil rights legislation (supposedly) impacts whites negatively (fewer seats on the bus, etc.) so the white judge can benefit from the outcome as well. You can always turn the scenario around and see how the race/gender/religion/sexual orientation of the allegedly unbiased group is every bit as biased in a tangible way. This idea that only one group is biased is preposterous. The problem is so few people bother trying to see things from another groups' view it never occurs to them that their group will potentially benefit from the decision as much as the other group.

Another lawyer:

The issue is not whether gender plays a role in society, it is whether it plays a role in a marriage.  Are the genders equal under federal law in a marriage?  The answer right now is yes.  If they are not equal then this is a MUCH bigger deal for all married persons not just homosexuals.  You want to see Mama Grizzilies in action, try having Scalia saying that women’s role in marriage are not equal to men’s.

Yet another lawyer:

Technically, appellate review of facts is based on the substantial evidence test — is there competent evidence in the record which, if believed, supports the trial court's findings of fact?  The appellate court cannot weigh credibility in this assessment.  The trial court judge was in the best position to hear and weigh the evidence, credibility of witnesses, and so forth.  So where facts are contested, if the trial court chooses to believe one side but not the other that decision should not be reversed.  Conclusions of law — application of law to facts — are reviewed "de novo" — without deference to the trial court.  So it is not surprising that Judge Walker spent so much time on the findings of fact.  If (a big if) the appellate courts adhere to the normal rules of appellate review, they should not disturb Judge Walker's findings.  If they are inclined to reverse, it will be done by disagreement with Judge Walker's statement of the law or how he applied that law to the facts.  That task is made more difficult where explicit findings, supported by substantial evidence, have been entered.

A final reader:

I don't know if Drum read the opinion or not, but I did, and to argue that it "essentially ruled that bans on same-sex marriage are nothing more than an "artifact" of history…" is a gross misreading of the ruling. I agree with other readers that fact finding is extremely important, but a lot of that is merely a measure of what the attorneys did. The meat of the reasoning comes from the last 20 pages or so, and while he mentions the "artifact of history" argument, he only does so to underlie why "tradition" cannot be a rational basis for the law, and backs it up with precedent.

The bulk of the reasoning is straight (excuse the pun) fundamental right/due process and equal protection analysis. He states that the Supreme Court recognizes marriage as a fundamental right, and that triggers strict scrutiny. So Drum is 100% wrong that only a rational basis is necessary. Impinging on a fundamental right requires the very rigorous strict scrutiny test, not the rational basis one. Walker chooses not even to address the strict scrutiny argument because he finds that respondents cannot even give a rational basis, much less the much tougher "compelling government interest" test that the law is "narrowly tailored" to meet. Strict scrutiny is so tough a test that only a handful of laws have met it, and I couldn't name you a case where one could, and I've studied this stuff quite a bit.

Raffi Khatchadourian, author of a long profile on Wikileaks founder Julian Assange, gives another reason to dismiss Marc Thiessen's call for military action against the website. It wouldn't work:

Thiessen’s argument calls to mind the music industry’s effort to shut down Napster—a Web site where recorded music could be traded and downloaded without regard to copyright—in the nineteen-nineties, in that it loses sight of the broader technological and cultural revolution that the Internet has brought to the exchange of information. In 2001, after a lengthy legal battle, the Recording Industry Association of America succeeded in forcing Napster offline, only to watch Napster’s services move to a number of other Web sites that were structured in a more decentralized way (pdf)—making the piracy of music even more diffuse and difficult to prosecute. Only recently has the industry grudgingly been adapting to file-sharing rather than fruitlessly seeking to eliminate it, and one can now find music executives who even speak of Napster as a lost opportunity for their industry.

Shutting WikiLeaks down—assuming that this is even possible—would only lead to copycat sites devised by innovators who would make their services even more difficult to curtail.

Eric Martin provides another parallel:

This reminds me of conservative complaints aired during Sonya Sotomayor's confirmation hearings: that her Puerto Rican roots would unduly influence her decision making process regarding civil rights cases.  Again, though, the assumption is that being a Caucasian means being free from any and all biases.  Which is on its face preposterous as all people are influenced by their past experiences and particular perspective. 

A reader writes

As a resident of Baltimore, I am disappointed that when you turn your attention to violent crime, including, or perhaps especially, perpetrated by police officers, it features the shooting of a dog. I believe that dogs should be treated with decency and dignity, but so should humans.  What about the six year old girl who was hit by a police cruiser on Tuesday and remains in the hospital after police claimed that she had been released? How about the 40% of rape victims whose calls to 911 were dismissed by police officers and never referred to the sexual assault unit?  Or the U.S. Marine shot to death by a police officer around the corner from my house?  Most of the time the police department has acted on these problems only after often-preventable damage has been done. And this is not even to mention the horror of so many murders by and of young men from neighborhoods with no hope.  While most of us would like to keep Baltimore looking good to potential tourists, sometimes the injustice of daily life for so many people here is too much to bear.  And then we read about a dog being shot.

Yogi and Boo-Boo get it on.

For a very long time now, the Drudge Report has called Janet Napolitano "Big Sis." Fair enough, I guess, as a variant on Big Bro, but the lesbian inference is pretty clear. In case it isn't completely clear, here's how the site portrays a story that some police agencies in Florida had stored body scanning images at a court house:

The Drudge headline: "Big Sis Admits Storing Naked Body Scans".  The story, however, contains this quote:

TSA spokeswoman Sari Koshetz told CNET on Wednesday that the agency's scanners are delivered to airports with the image recording functions turned off. "We're not recording them," she said. "I'm reiterating that to the public. We are not ever activating those capabilities at the airport."

So this is an accusation that an allegedly lesbian head of DHS is secretly looking at naked women on stored body scanners, when there is zero evidence that this is in any way true in the story linked. But it was too good a lesbian joke to miss.

A fascinating conversation with Benjamin Kerstein over at Totten's that emphasizes the psychological forces at work in Israel that impede any reconciliation with the Palestinians. I disagree with the notion that the US should not and cannot demand a freeze of the illegal settlements on the West Bank – or that this is so utopian it cannot be taken seriously. But there's a lot of nuance in the discussion – and candor. Money quote:

MJT: What do you think will happen here if Iran gets nuclear weapons? I’m assuming here that Iran won’t actually nuke Tel Aviv, but will occasionally threaten to do it.

Benjamin Kerstein: I don’t know. Israelis have learned to put up with a lot. My guess is that our reaction would be to go public with our own nuclear program, if it exists. [Laughs.] We may end up in a state of uneasy deterrence, like with India and Pakistan.

MJT: India and Pakistan have come close to nuclear war a couple of times.

Benjamin Kerstein: That’s true. I think Israeli society will endure. We’ve faced existential threats in the past. People forget that. The military power the Arab states tried to bring to bear against Israel in the 1960s and 1970s would have been just as destructive as a nuclear bomb. Israel prevailed against them from a weaker position. Still, this is an outcome everyone should do everything possible to avoid.

And yet if Netanyahu were to order a strike on Iran, Kerstein would support him. As I said, the psychology is what's interesting.

Michelle Cottle perks up:

I’d written off young Bristol as too tiresome even for late-night tabloid reading, a throwaway quote from her lawyer in Wednesday’s WaPo made me reassess her whole relationship with Levi. Offering his armchair analysis of the love bird’s most recent troubles (beyond Johnston’s being a juicy slice of trailer trash, of course), attorney Rex Butler mused: “[Bristol] doesn’t want him in Hollywood. … She wants him to sort of be like Todd Palin in the background while she does the running around. Levi, on the other hand, is not ready to settle into that role.”

I ask you: How awesome is that? It seems Bristol Palin has been raised to assume that a man’s role is that of supportive helpmeet, that it is Dad who’s supposed to keep the home fires burning while Mom goes out and sets the world on fire. If that’s not a progressive perspective on gender roles, I don’t know what is. Way to fly that feminist flag, Sarah! And, oh yes, you too Todd.

Cottle isn't kidding. I doubt Todd Palin would agree either.