Hell. YES.

Prop 8 has been struck down. I will blog more about this later; ’til then, revel in this: ‎

“Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

Love WINS.

My Rights v. Yours

I figured if I am going to eat major crow, at least I can put on a little New Pornographers in the background. Seriously, though, I am actually surprisingly happy to write this post and thank all the people involved for hearing me out on these issues.

As any of you that actually read this blog probably witnessed the whole gun debacle, then witnessed the removal of the debacle in its entirety. People that actually know me, know that this has been a pretty upsetting experience, but after emailing at length with several people from the pro-2nd-Am side, and after a LOT of thinking on my part, I have come to a few major conclusions about the whole thing that I would like to share.

Now, I would like the anti-gun people to bear with me and really *think* about what I am writing. I know that a lot of you will TOTALLY disagree with the details of what I write, but I would like you to try to ignore the details and imagine what I posit. What I would like to do is open up a dialogue about how we fight for our rights and beliefs and WHY public perception is important. I am going to open up comments and I ask EVERYONE to keep it cordial. Learn from mine and Rob’s mistake. This means no nastiness, no threats, and, yes, no douchy personal attacks. Though, as always, you are free to swear as much as you want.

This is more or less excerpted from an email that I sent, among other people, Bob S, who was the original commenter to the gun post. I want to point out that I have apologized to Bob S via email and that Rob has apologized, as well. My reasons are explained below. Rob would like to say that he is VERY sorry for the comments he made both here and on his blog. He deeply regrets the whole thing and hopes that Bob S wasn’t negatively affected by them.  Rob absolutely never intended to follow through on any element of what he said and was just reacting out of fear. He was upset and worried because I was upset, but that is really no excuse. He should never have written those comments, or defended them and he honestly hopes that Bob S will accept his apology.

Here goes…

Bob S-

This has really given me a lot to think about – your response, some of the responses of others, and all that has transpired up until now. I plan to post parts of this email on my blog as an attempt to both reopen the discussion and to (hopefully) undo some of the damage done.

I think, up until now, I haven’t been able to look at the situation from any vantage point other than my own, which includes my own reactions to seeing some nastiness directed at me personally. Now, obviously my first several responses are not a shining example to cordial discourse. However, in general I make it a point to stay focused on the substance of the issue, and to not make any personal comments (which would include derisive comments about the person’s intellect). Though I will freely admit that sometimes I stray from this mandate.

The main problem with that, as I may have mentioned to someone else, is that I don’t really have a personal, vested interest in either side of the debate, so in participating in the debate I committed the same cardinal sin that I often rail against – namely, taking a side on a peripheral issue that necessarily argues against the rights and interests of others, when I have the luxury of not having something profound at stake.

However, if I remove all the vitriol from both sides, and think of this in terms of an argument for one’s rights v. the curtailing of those rights as a matter of public interest, I can see *exactly* what you have said regarding your cause and the damage that posts and comments like mine may have and can totally see how both the original post and the picture are offensive. Because whether or not I agree with what you believe, there is little difference between your desire to protect a basic right and my desire to protect some other basic right.

For example, I have very strong feelings about gay marriage. The basic issue, for me, is that I find it utterly repugnant for the State amend its Constitution to take away the rights of a certain group of people, simply because *some* people do not like what *other* people do behind closed doors. And in reading your comments about the damaging effects of public perception on the fight to retain rights, I realized that those are exactly the same comments that *I* make in defending the issues that are dear to me. And then I realized how I would have felt and reacted if I had come across a post that I considered derisive, insulting, and misleading on an issue I believed in.

Likewise, I would fully expect a similar onslaught from other like-minded people. And they would have responded with a similar wave of statistics, stories, appeals, and yes, nastiness and anger in their comments in defense of our viewpoint. And I would have been equally offended when the original poster shut down the debate. Because when a minority depends on the majority to “allow” them to continue to exercise their rights, the minority necessarily depends on public perception of their “agenda.”

I imagine it is much worse when the public misperception is that your group is angry, paranoid, and aggressive, regardless of how hard you work to challenge that and show it as falsely based. Probably kind of hard to do anything even remotely defensive without being seen as proving the myth. I will freely admit that when you first began commenting, I read your comments as being overly aggressive and vaguely threatening, and that this context comes from my pre/misconceptions of the very vocal wing of the pro-gun movement.

I would also like to add that, thanks to many of the comments that I received in response to my previous posts, I can say that, by and large, there are many, many articulate, passionate, educated, and polite people on the pro-gun side of the debate. I would remind readers of the number of kind comments that we had where commenters shared their stories and expressed both interest and care in the stories and situations of others. Unfortunately, as with many debates, the overwhelming good gets drowned out by a small handful of ugly, and that often what we perceive as ugly is only ugly because we don’t agree with it. Townhall debates, anyone?

I am generally only subject, as you can probably admit your initial comments reflected, the preconception that I am going to cry about the children. Or the other traditional misconceptions that liberals are unpatriotic milquetoasts.

To be fair, most of my readers are actually friends, so when they saw the deluge of comments, and the multitude of trackbacks and links, they of course saw this as an “attack” on my blog. Moreover, they will see comments made about me (and that includes comments made on other people’s blogs) as personally as they are written, and if they think these comments are unfair or cruel (and I think we can all admit that there have been some pretty nasty things written about me personally as opposed to my views), it is only because they know me. And hopefully know that I am not a mentally unbalanced gutter whore who got my JD in a Happy Meal.

But again, to be fair, I see similar behavior from people of all sides when they feel their interests are threatened. In fact, I am fairly certain I once accused mike w of acting like an a**weasel on a board about healthcare. Note, though, that this was a pro-swearing board, otherwise I wouldn’t have written it. Though it is also true that he has accused me numerous times of being absolutely void of intellectual functioning.  Anyhow, my point is that it isn’t just “gun people” who make personal attacks or are perceived to be a bit, shall we say, aggressive in defending their cause. And yes, mockery is a common response among people who feel their basic rights are being challenged.

So I just wanted to say that I see your side of the argument now. I can see how the initial post and picture are offensive, and while I can’t promise not to offend anyone in the future, I am sorry for offending you (and others). And I also see how the post, picture, and comments, as well as the removal of all the posts and comments in their entirety was unfair to your side of the argument. And I apologize for that. I probably won’t agree with your positions on things, but I certainly won’t be so callous about other people’s rights in the future.

Hope this makes sense and thanks for hearing me out. If anyone has any other thoughts, I would appreciate it. I would like to open up a debate and maybe even provide a forum where pro- and anti- can come together for a reasonable discussion. Perhaps my mandate for guns and gays will bring us all together… Or just simply alienate everyone.

My Wedding (Cup)Cakes. And Yes, I Made Them.

Cali-Watch, Part 2

You know, I had a feeling SCOTUS wouldn’t allow the streaming of the Perry v. Schwarzenegger oral arguments. I write ‘had a feeling,’ but I STILL kind of thought they would allow it, since they would have had to work a little hard to invalidate the original ruling. Turns out, my feeling was right and the hard work was put in.

Yesterday SCOTUS entered a preliminary order blocking the broadcasting of the arguments on YouTube. You can read the full PC opinion over here and a better eval than I could ever give on the opinion here at scotusblog.com.

I think this ruling is bad. Obviously and admittedly I have at least three agendas at play here. First, I believe in unrestricted access to governmental process (government in the sunshine and all that), especially where, as here, access would not have come to the inconvenience or detriment of any of the parties. Can’t really “embarrass” the state like you can an individual citizen. And second, I am pro gay marriage, believe it to be a basic human/cultural/social right, and also believe it to be a right inherently extended to all US citizens, thus subject to protections of the Constitution. And third, I do not think the government has ANY business regulating what are inherently private matters among consenting adults.

Now, to the opinion. Why is it bad? Because it looks like a political move. And let me clarify that I don’t mean a judicial agenda. I would expect that all Judges and Justices have a judicial agenda – i.e., an approach that defines how they approach the law and a goal for the legacy they wish to leave behind. No, what I mean by ‘political moves’ are when the actions seem motivated by an attempt to reach out and shape the issues before they are actually in front of you or to take jurisdiction over issues that you normally wouldn’t touch. Don’t get me wrong, this is something that goes on regardless of philosophy.

And really? Rather than a political move, it could be a simple prophylactic measure, as there has been a bit of a hubbub about courts NOT wanting video broadcasts to become the way of the court. But still…

First, higher courts don’t generally tell lower courts how to decorate their offices, so to speak. Each court, whether state or federal, is almost certain to have its own local rules, which basically cover anything non-substantive that isn’t covered by the fed/state rules of procedure. Things like what documents need to be filed in summary judgment motions and how/when counsel may approach the bench, what counsel may wear (for real, many local court still had skirt reqs on the books for the ladies until very recently – if you know of some that still do, let me know), how cases may be set, etc. To use their “supervisory power” in a situation such as this one is unprecedented.

Lower courts typically are not a consortium-type setting – meaning that unlike appellate court, there is no panel and each judge has his/her own courtroom, personnel, and ground rules. And perhaps it is a show of respect or just a recognition that these rules have no bearing outside of the individual judge’s courtroom, but the higher courts don’t generally poke their noses in where the rules have absolutely no substantive impact on the citizenry. And since this trial is open to the public AND being heavily covered by the media, I don’t see how testimony integrity or chilling effect is a valid concern.


Professor DAVID LEVINE (U.C. Hastings College of Law): “This is like going to Disneyland for legal scholars.”  NPR

Oral arguments opened today in the federal court challenge to California’s gay marriage ban. This is the first federal question challenge to the validity of gay marriage bans. So yeah, this is pretty big, as this one is expected to wend its way to SCOTUS. Last week, I was pretty excited to read that US District Judge Vaughn Walker was going to allow the arguments to be streamed. But alas, SCOTUS has since decided that whether or not the arguments can be streamed is its decision. Which it hasn’t given us yet, but promises to have by Wednesday. So, until then, we have just the retelling by various news sources.

How nerdy is it that I thought of those links as spoilers?

[EDIT: UPDATE – SCOTUS has weighed in on the YouTube issue; new post up here]

Now granted, not everyone is a con law nerd. But this case really REALLY has a lot of interesting issues. And I would have expected that the opening arguments would have been exceptionally stellar. AND would have given us a roadmap on how the two sides to this issue intend to lay their respective Constitutional groundwork.

And people – oral arguments are so cool. No really. In my opinion, it is the most exciting part of the process. I think that most people think that the only “exciting” lawyering is trial level work, and that, generally speaking, “trial work” means harassing witnesses, ‘gotcha’ moments, strange rhyme schemes, etc. But this, in my opinion, isn’t the best part. Generally speaking, at a trial court level, people will try to win over the judge on questions of law and the finder of fact (whether it is a jury or the judge sitting as fact-finder) on questions of fact. I have notice that most tv shows portray trials as mostly questions of fact, where the law questions are resolved via tense motions and in camera arguments. I don’t know – maybe it actually is that way in criminal work, which would seem to involve more questions of admissibility, but in civil cases it doesn’t really work that way. I think a lot of how civil cases are handled depends on your jurisdiction’s approach to summary judgment proceedings – but that is a discussion for another day.

My point, which I lost somewhere, was that oral arguments are really where you can see a lawyer work. And while they certainly are “exciting” at a trial level, I am going to try to take this opportunity to sell you on the joy and sexiness of appellate work. Trial work can be very interesting, but nowhere near the jurisprudential ironman challenge that is appellate work. Imagine a trial – just like what you see on your average lawyer show. Now take away the jury, the parties, the police officers, the witnesses, the evidence, and the criminals and you’ve got appellate lawyering! What, I ask you, is more exciting that a room empty of everything but lawyers, judges, and clerks?

NOTHING. NOTHING is more exciting. Appellate arguments are legal discourse in its pure, distilled form. Like that blue stuff that the Bene Gesserits drink in Dune.

If you would like to hear some SCOTUS orals, you can peruse some of the “classics” at www.oyez.org.