Tag Archives: Law

Civil public dialogue

Senator Orrin Hatch and your correspondent

Senator Orrin Hatch and your correspondent

I studied law because I wanted to be involved in politics.  Thomas Jefferson told a cousin who sought his advice that, if he wanted to go into politics, he should study the law.  I figured Jefferson knew what he was talking about.

My party preference was set when I heard Senator Jack Kennedy, running for President, speak at Fordham University when I was a High School freshman at the Prep.

Senator Ted Kennedy and, well, yours truly

Senator Ted Kennedy and, well, yours truly

I didn’t give a thought to whether preferring one political party or another could bar one from public service.

After Columbia Law School, I was appointed a law clerk in the 2nd Circuit by an Eisenhower appointee, a NY federal prosecutor by a Nixon appointee, special counsel to the U.S. Senate Judiciary Committee by Senator Strom Thurmond, and special counsel to the U.S. Senate Labor Committee by Orrin Hatch; all of these appointments were by Republicans.

In those days, you could find a worthy challenge in public service without regard to party affiliation.

In 1980, I was a Director of Citizens for Kennedy in New York, when Ted challenged Jimmy Carter to be the party’s nominee for President.  But it was not to be.

When I was appointed by Senator Hatch as his Special Counsel after Ted’s campaign, I arrived early to an empty Senate Labor Committee Hearing Room, except for Senator Kennedy who was the ranking member on the Committee.

Ted asked, “What brings you here?”

“I’m Special Counsel to the Senate Labor Committee,” I answered.

Ted laughed, “No, you’re not. I didn’t appoint you.”

“No,” I said, “You didn’t but Orrin did.”

Ted came closer, speaking softly, in a mock conspiratorial way, and asked, “Does he know about us?”

I said, “Yes, he does.” Continue reading

Civilizing the savage man

leoRevenant“Revenant” is a gritty and terrifying western about Hugh Glass, a 19th Century frontiersman, left for dead after a mind-chilling, grizzly bear attack.

Glass crawls and limps, near death, bleeding from open sores, suffering unremitting pain, across hundreds of miles, to find and to kill the man who abandoned him who was charged with keeping him alive; Leonardo DiCaprio gives an Academy Award-winning performance as Glass in Alejandro Inarritu’s amazing movie.

It’s a primal story of survival, devotion, relentless cliff-hanging danger, disaster, betrayal, torment, violence, revenge, and human savagery.

This is a vivid rear view reflection on a society with little use for law or custom.

This is a world, both primitive and elemental, played out before sweeping scenic panoramas so wild and untamed that life is continuously at risk, both from the natural surroundings but also from the savage man.

Aristotle wrote that, “At his best, man is the noblest of all animals; separate from law and justice he is the worst.

In the movie, Revenant, man is at his worst.

Revenant is an excursion into savagery and teaches the value of law and civility. Continue reading

This week in anti-gay temper tantrums

We-dont-discriminate-stickerFirst up: Oral arguments in Bostic v. Schaefer before the Fourth District Court of Appeals are scheduled for May 13. The court will be hearing the appeal of Judge Arenda Wright Allen’s ruling that struck down Virginia’s anti-marriage Marshall-Newman amendment.

The Virginia “Family” (not yours) Foundation, in anticipation, is holding a 40 day “fast.” Don’t be alarmed, though. They won’t starve, or even lose any weight. The word “fast,” according to the clarification that appears on their website, and contrary to its common meaning, “does not translate” to “hunger strike.” It only means temporarily giving up something you kind of enjoy, like Diet Coke. Yes, Diet Coke is actually the example they cite. This word salad, apparently intended to explain the aforementioned desperate action, also appears:

Our state and nation are mired in a morass of confusion and post-modern thinking that does not believe in absolutes nor that any truth can even be known..

Huh? A bizarre statement, until you realize that it perfectly describes their own post-modern thinking. Martyrdom is just not what it used to be.

Next, from the Magnolia State: As you might imagine, Mississippi, like Virginia, has no civil rights provisions protecting LGBTI people from discrimination. Unlike, for example, in New Mexico, it is perfectly legal for the proprietor of a Mississippi business or public accommodation to refuse service to someone on the basis of their actual or perceived gender presentation or sexual orientation. It’s also perfectly legal to fire someone, deny them housing, deny them a bank loan, or any other form of discrimination that would be prohibited if it were on the basis of race, nationality, or religion.

That wasn’t enough for those in the state who see imaginary violations of their constitutionally protected religious freedom in every shadow, however. Earlier this month, the state legislature passed a bill, similar to the one famously vetoed by Arizona Governor Jan Brewer, that reiterates the “right” to discriminate that anti-gay bigots in Mississippi already enjoy, and effectively expands their “right” to discriminate against anyone else they dislike as long as they claim the discrimination is motivated by a “sincerely held religious belief.”

Continue reading

Virginia gets a Valentine

U.S. District Judge Arenda L. Wright Allen begins her opinion striking down the Marshall-Newman amendment by quoting Mildred Loving:

We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is? . . . I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry. Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. . . . I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

Continue reading

More marriage news that will upset Bob Marshall

yardsignsUpdate: As expected, Nevada Attorney General Catherine Cortez Masto has filed a motion to withdraw the state’s brief in defense of Nevada’s ban on same sex marriage. A statement from Republican Governor Brian Sandoval’s office says “based upon the advice of the Attorney General’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.” The only remaining party willing to defend the amendment is now the “Coalition for the Protection of Marriage,” the third party intervenor responsible for putting it on the ballot in 2002. Given the Supreme Court’s ruling in Hollingsworth v. Perry that such an intervenor does not have standing to appeal, it’s likely that a Ninth Circuit ruling in favor of the couples seeking to overturn the ban will be the end of the line for the so-called “Protection of Marriage Initiative.” The plaintiffs are seeking an expedited hearing.

Now, can we finally put to rest the notion that our Attorney General is “out there on a limb by himself,” per Mr. Marshall?

(Originally published January 27, 2014) Over the weekend there were two more developments toward the ultimate demise of anti-marriage state measures like Virginia’s Marshall-Newman Amendment.

Continue reading

Birth Control Is Pro-Life

Population_explosion_birth_controlBirth control is pro-life.

Birth control means we have the children we want, that we can afford to raise and care for, and that we are bearing those children we can sustain.

There is an impulse in this nation to reproduce children without regard for whether the children are wanted or sustainable.

That’s why we have 400,000 children in this nation in foster and state homes. Half of these children in foster care have chronic medical problems. Those who age out of foster care endure homelessness, poor health, unemployment, incarceration and worse.

In response to a question online, “Should pro-life activists be morally obligated to adopt, love and provide for a ‘saved child’ currently living in state care,” 71% responded that they feel no obligation to adopt any unwanted child themselves.

Continue reading

“Bob Marshall is not, and never has been, an attorney.”

I continue to be reminded, sometimes several times in one day, of the comment in which anti-gay and anti-labor activist lawyer James Young informed me that “Bob Marshall is not, and never has been, an attorney.”

It explained a lot, and for that I thank him. The Richmond Times-Dispatch reports the following:

Del. Robert G. Marshall, R-Prince William, said today that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark R. Herring over his refusal to defend Virginia’s same-sex marriage ban in federal court this week.

Marshall sponsored the 2006 amendment to the state constitution.

“I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview Monday afternoon.

“If after a pleading has been filed an attorney decided that his client is guilty, what would the bar do with that attorney? And they better not go soft because he is the attorney general,” he said.

I suppose that never having been an attorney could explain Marshall being unaware that the legal obligations of a private attorney and a public one, such as an attorney general, are quite different (although that hasn’t prevented me from being aware of it – and I don’t sit on a legislative body). Surely Marshall has some attorney friends in the House of Delegates who could have explained this to him:

Continue reading

Bob Marshall’s marriage meltdown

bob_marshallBob Marshall has said some dumb things over the years, but I don’t think I’ve ever heard him embarrass himself more than he did yesterday on the Kojo Nnamdi show.

Marshall was interviewed for a segment about Attorney General Mark Herring’s determination that Virginia’s anti-marriage amendment and statutes are unconstitutional. His remarks start out calmly enough, if poorly reasoned. Then the wheels come off. The entire segment starts at the 9:20 mark; the interview with Marshall is introduced at the 10:56 mark.

Marshall begins this rhetorical circus by asking whether Tim Kaine, governor in 2006-7 when the Marshall-Newman Amendment was enacted, “consciously signed a bill that violated the Fourteenth Amendment.” This is simply a stupid question on its face. Of course he did. How would any unconstitutional law ever become law if this didn’t happen? Every governor in every state that enacted similar amendments signed a bill that violated the Fourteenth Amendment. Does Marshall believe that it’s impossible, by definition, for anything enacted by a legislature or popular vote to be unconstitutional? Because that seems like a problem.

Continue reading

“The injustice of Virginia’s position in Loving will not be repeated this time.”

Last week, in anticipation of this morning’s announcement by Attorney General Mark Herring’s office that he will not be defending the infamous “Marshall-Newman Amendment,” Republican delegates were already trying to lay the groundwork for an end run to get their way:

“[T]he attorney general’s job is like a judge. A judge will tell you, ‘Look, I might not agree with the law, but my job is basically not to make law. It is to look at what the law was [and what] the legislature intended,’ ” House Majority Leader M. Kirkland Cox (R-Colonial Heights) said.

That’s right. AG Herring looked at the Virginia constitutional and statutory ban on same-sex marriage, and what the legislature clearly intended by it, and made the determination that it was unconstitutional. Given the recent rulings in Utah and Oklahoma that affirm the reasoning of the U.S. Supreme Court ruling in Windsor, it’s clear that the Virginia amendment does, and was intended to, violate the due process and equal protection rights of Virginia same sex couples under the Fourteenth Amendment. There is a reason, after all, that the legal team of David Boies and Ted Olson, who so brilliantly argued the Prop 8 case on behalf of the American Foundation for Equal Rights, chose Virginia as their next venue: Virginia’s anti-marriage amendment is considered the most extremely worded and restrictive in the nation.

Continue reading

Two days

utah_marriageDuring the past 48 hours, we have learned that the Uganda legislature has passed what is one of the most draconian anti-civil rights bills targeting sexual minorities in the world – bookended between announcements that two more US states – New Mexico and Utah – are constitutionally prohibited from excluding same gender couples from civil marriage.

From the Salt Lake City Tribune this afternoon:

A federal judge in Utah Friday struck down the state’s ban on same-sex marriage, saying the law violates the U.S. Constitution’s guarantees of equal protection and due process.

“The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason,” wrote U.S. District Court Judge Robert J. Shelby. “Accordingly, the court finds that these laws are unconstitutional.”

fischer_ugandaMeanwhile, Bryan Fischer, spokesperson for the American Family Association, was tweeting this about the situation in Uganda. I don’t know that we could have had a more timely and chilling reminder of the fact that as LGBTI people in the US move closer to attaining full civil rights, anti-gay activists who are rapidly losing ground here are focusing more of their lethal attention on our sisters and brothers in other countries.

Continue reading