August 4, 2010 at 5:08 pm (Due Process, Equal Protection, Marriage Rights, Politics)
Tags: prop 8
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.”
May 23, 2010 at 8:32 pm (Equal Protection, Life Down South..., TEA Party Musings)
Tags: race, TEA party
What follows is, more or less, a comment I posted on the now-epic Tea Party and Race post. I am turning it into a separate post (1) because I think it is a conundrum worth exploring and (2) that comment section may be a bit unwieldy at this point.
…As for the federal Civil Rights Act and expressions of malcontent with said Act… well, my opinion is that intent only matters to a certain degree – at some point you have to address results. In other words, one can philosophize all day long about the nobles ideas behind one’s opinion, but noble ideas don’t trump results.
So, if the ‘noble idea’ that you are espousing is no federal governmental intrusion, but a lack/repeal of federal gov’t intrusion would result in some state’s infringing upon the basic federal rights of some of the citizens, you don’t get a [total] pass [on the actual results of the implication of said idea]. This kind of ‘let them eat cake’ mentality simply doesn’t work in reality.
It’s all well and good to say that people should not shit on each other; but I think we all have to agree (or maybe just those of us in certain areas) that *if* the federal government were not “intruding,” our kind would not be welcome. And by “our kind” I mean whatever particular group/belief/etc that is pilloried for simply trying to exercise the same rights as everyone else.
And don’t get me wrong – I still hold a serious thing for Libertarianism. We were very close for a long time, and even though we have parted ways, I would like to think that we are still friends. I just realized that it wasn’t me; it was everyone else. As I moved through education and from the service industry to the professional industry, I realized that but for federal protection of federal rights, those rights would be utterly meaningless.
And if we allowed a “patchwork” approach on nationwide interests like public education, we would only see the poor states get poorer and less educated while the rich got richer. And we would not be a Union in any sense of the word because we would self-segregate faster than you can say the Pledge of Allegiance.
… I should make it clear that I do not think [a person is] a racist; I don’t think [their] position is racist, and I don’t think [their] statements can be interpreted as racist [simply because they are advocating a stance that the Federal Gov’t has no business enacting legislation regarding civil rights].
I think there is a space between racists and people actively advocating for equality, though. And while I don’t believe in a my way or the highway/you agree with me or you are a racist approach, I *do* believe that people in the middle should be aware that sometimes their stance encourages and supports a status quo that is not equal for all people. Again, this doesn’t mean that they are racist, but it may mean that something they support – for whatever reason – will likely have a disparate/unfair impact on people who are already generally in a weaker bargaining position.
If I Would Have Known You Were Coming, I Wouldn't Have Eaten the Whole Damn Cake.
January 11, 2010 at 9:12 pm (14th Amendment, appellate fun, Due Process, Equal Protection, Marriage Rights, Politics, SCOTUS, The Lawyerin')
Tags: california, constitutional, federal question, freedom to marry, prop 8, right to marry
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.