The Victorious Opposition

The TImes got on top of a story about a week ago with the headline “Dead babies found in trunk in LA apartment.” You can dig through the article to the original, or just allow me to summarize the previous for you. Basically, a lady had her eye on this old trunk that was in the basement of an apartment building she was working in. When she got the okay that no one was going to claim it, she had it opened thinking there was sure to be some really valuable old junk in it. Searching through the trunk, she find in a couple of Doctor’s duffles two dead babies, that were very old and mummified.

Cops are now doing a full investigation, but here’s what was found accompanying the dead in the trunk. One mint copy of Peter Pan, a ticket to the 1932 Olympics in Los Angeles, a certificate the “Peter Pan Country Club,” postcards, etc.. Very conspicuous artifacts. So, now there’s some more digging.

A new mystery woman emerged Friday in the search to identify the owner of a steamer trunk that held the mummified remains of two babies.

Janet M. Barrie lived in the same Westlake apartment building where the trunk had been stored for decades, according to voter registration records.

And although her name does not exactly match the name Jean M. Barrie — which police say was engraved on the trunk — there are clues to suggest that Janet M. Barrie could have been its owner.

» Don’t miss a thing. Get SMS breaking news alerts on your mobile phone. Text BREAKING to 52669.

The trunk, which was opened by two women clearing out the apartment’s basement on Tuesday, contained postcards, clothing, photographs and books — along with two leather doctor’s satchels. Each of the satchels held the body of a baby, swaddled in newspaper from the 1930s.

The photographs and the clothing, including a flapper-style dress, suggest that the woman who owned the trunk was petite, with fair skin and brown hair, detectives said. Some of the postcards were sent from San Francisco and others from Canada.

Janet M. Barrie lived at the Glen-Donald apartment building in 1948, 1950 and 1954, according to voter registration records.

She was born in Scotland in 1901 and immigrated to Canada and then the United States, according to immigration paperwork from the 1940s.

On one immigration form, Barrie wrote that she was 5 foot 1, with fair skin and brown hair. On the form, she said she had lived in Los Angeles and Chicago between 1925 and 1941. U.S. census records show that in 1930 Barrie was living in a boarding house near MacArthur Park and was working as a private nurse.

Her work as a nurse could be significant, because detectives say there was a bundle of blank medical test forms in the trunk.

By the late 1940s, Barrie had returned to Los Angeles. In 1964, she married a doctor, George Knapp, according to records.

Police are looking to see whether anything in the trunk suggests that Jean M. Barrie also may have been known as Janet M. Barrie.

Detectives also have identified two other women — both named Jean M. Barrie — who may have owned the trunk. One of them lived in the same Westlake neighborhood where the Glen-Donald apartment building is located and may have worked as a nurse. She was born in San Francisco in 1916.

Another woman by that name was a well-known storyteller and performer at the time. This Jean M. Barrie lived in the Midwest and on the East Coast, and was a relative of J. M. Barrie, the author of the children’s book “Peter Pan.” A copy of “Peter Pan” was found inside the trunk, along with a membership certificate in the Peter Pan Woodland Club, a Big Bear resort.

Meanwhile Friday, coroner’s officials continued their autopsies of the babies to determine how they died. Coroner’s officials hope DNA and other tests will help determine whether the babies were stillborn, aborted, subjected to trauma or died of natural causes.

So now there’s two people of interest that did the same thing in the same area? One might be the relative of the author to Peter Pan? The books are highly conspicuous, the doctor’s bags are definitely something of note, and the artifacts in the case are unsettling to say the least. The coroner so far determined the death of the children around 1930s because they were wrapped in a newspaper from the era.

Whatever it is, someone wanted these children to be found, and they definitely appear to have been thoughtful enough to have left clues to help figure this out. It’s insane that no one stumbled on this earlier, and no one knows what the future holds, but it’s captured my interest since they uncovered it earlier this week.

Keep you posted.

Judge Walker ruled today (PDF file) on the Prop 8 Proponent’s request to stay his order enjoining enforcement of Prop 8 while the case is under appeal. He ordered that enforcement of Prop 8 must cease on August 18th:

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

It is presumed, but never stated, that the delay is to allow time for the Prop 8 Proponents to appeal this ruling to the 9th Circuit.

This stay request was doomed to fail. It was filed before the decision was announced, and based its “probability of success on appeal” on the following premise:

For all the reasons explained throughout this litigation, including in our summary judgment briefing and argument, Doc ##1 72-1 & 21 3; trial memorandum, Doc #605; response to amicus submissions, Doc $604, answers to the Court’s questions for closing argument, Doc #687; and arguments made during trial, Proponents are likely to succeed on appeal should this Court rule that Prop 8 is unconstitutional.

But those arguments failed at trial. Asserting those same arguments in no way demonstrates a likelihood of success on appeal.

Various conservative groups are screaming about “activism” and “rogue”, but the rules for granting stays of judicial orders are strict (stricter than the preliminary-injunction issues that we’ve discussed several times. They were most recently elucidated in a 2009 SCOTUS opinion authored by Chief Justice Roberts, in Nken v. Holder, where Chief Justice Roberts stated “A stay is not a matter of right, even if irreparable injury might otherwise result.” (the case in question involved a request to stay an order of deportation). The side requesting a stay must meet the following burden:

In deciding whether a stay is appropriate, the court looks to four factors:

1. whether proponents have made a strong showing that they are likely to succeed on the merits;
2. whether proponents will be irreparably injured absent a stay;
3. whether the stay will substantially injure other interested parties; and
4. whether the stay is in the public interest.

Chief Justice Roberts indicated in his opinion that the first two are the most critical. Both the Prop 8 Proponents in their request for stay, and the responses from the plaintiffs and the State of California noted this standard, from this case, so there’s no basis to claim that Judge Walker used the wrong standard. And the Prop 8 Proponents didn’t come close on any of the four components.

Most importantly, in the context of this post, it is unclear that the Prop 8 Proponents have standing to appeal at all. I’m not 100% clear on how this works, but here’s my understanding of what Judge Walker wrote:

The Prop 8 Proponents are not defendants in this case, they are intervenors. The defendants were Gov. Schwarzenegger, et. al. When the case was decided for the plaintiffs, the Prop 8 Proponents did not lose, Gov. Schwarzenegger, et. al. lost. If the State of California chooses not to appeal, the Prop 8 Proponents do not have grounds to appeal themselves.

Essentially, they were allowed to act as defendant’s lawyers in the District Court trial, largely because the defendants chose not to defend themselves. Just like a lawyer cannot make a decision to file an appeal without the consent of his client, the same appears to be the case for intervenors. Judge Walker cites Supreme Court precedent from the 1990s as well as California Supreme Court and 9th Circuit precedent from the last couple of years as the basis for this conclusions.

Essentially, if the State choose not to appeal, the Prop 8 Proponents have to convince the 9th Circuit that they have independent standing to appeal, which isn’t a given.

Another completely different wrinkle is coming to light as well

I’ve finished reading through yesterday’s Prop 8 decision, and haven’t yet read any of the scholarly analysis from sites like SCOTUSblog and The Volokh Conspiracy, and have avoided most of the pundit blogs and news sites as well. As usual, my preference is to try to form my own opinions based on my own analysis, and then come back and revise it if I find compelling information from other sources.

Executive Summary

• This is going all the way to the Supreme Court. There are findings of fact that will be challenged, over and above the conclusions of law.
• The Prop 8 proponents, who put on the defense of Prop 8 since the State/named defendants declined to defend Prop 8, put on an astoundingly poor case. They only called two witnesses, who were unqualified and wound up agreeing with and/or stipulating to the positions of the plaintiffs, both in deposition and at trial.
• Judge Walker deserves the “activist” label, in the original meaning of the term when it started being used a century ago. The original definition of “activist” was in opposition to “minimalist”, and applied to decisions/judges who went beyond what was needed to expound on other matters. Judge Walker fell into this trap.
• The law, interpreted in light of the evidence, is squarely on the side of Prop 8 being unconstitutional, failing even rational basis review. It is hard to see how the SCOTUS will be able to find otherwise, but I never put it past them.

“The Will Of The People”

The main objection to this decision is going to be about an unelected judge overruling “the will of the people”. But thus it ever is with judicial review. The vote of the people carries significant weight, but is not, in and of itself, dispositive. See, for example, Romer v. Evans, which overturned a Colorado constitutional amendment. More importantly, the SCOTUS has held that fundamental rights are invalid subject matter for elections: “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” West Virginia State Board of Education v. Barnette (1943). We’ll come back to the question of whether we’re talking about a fundamental right below, but the basic principle here is that you can’t put such rights (in that case, the right of Jehovah’s Witnesses to refuse to pledge the flag)  to the “will of the people”, because that is fundamentally “tyranny of the majority”.

The Case By The Prop 8 Proponents

It’s pretty astonishing how bad a case the Prop 8 proponents put on. In fact, there seems to be a significant amount of finger-pointing going on between Religious Right organizations over this. They failed to present most of the witnesses who had been on their pre-trial witness list, and wound up calling only two witnesses. Since the non-called witnesses had been deposed by the plaintiffs pre-trial, those depositions were admitted by the plaintiffs, because in many instances, the witnesses had agreed with/stipulated to the positions of the plaintiffs (i.e. the defense witnesses wound up supporting the plaintiff’s arguments). This probably explains why the defense didn’t call them, but by doing so, the depositions were admitted unrebutted (if the witnesses had been unavailable for trial, the depositions likely wouldn’t have been admissible, but since the defense voluntarily chose to not call them, there were no grounds for exclusion).

The two witnesses they did call were woefully unqualified; what expertise they did have was in areas at best tangentially related to the topic on which they were testifying. In the end, the judge discounted the testimony of one entirely, and partially for the other. Trial rules require that the qualifications of expert witnesses be ascertained before the evidence they present is considered. In a jury trial, this is usually done pre-trial, but I guess since this was a bench trial, the testimony was allowed and then evaluated, rather than having a preview of the testimony separate from the trial. I’m not completely clear on why it was done this way. But honestly, it was better for the defense that their witness testimony was largely disallowed, because again, the defense witnesses wound up conceding the plaintiff’s arguments, this time at trial.

The team of Olson and Boise completely out-lawyered the Prop 8 proponents’ lawyers.

Analysis

Today Judge Vaughn Walker issued his ruling in the Federal court challenge to California’s Proposition 8. Links to the decision are below. Key pieces:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.

and:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.”

I’m sure we’ll be hearing all sorts of cries of “activist judges”; the Prop 8 advocates filed a request for a stay before the decision was even announced.

More to come after I get a chance to actually review the text of the decision.

Update1: Here are two links to the official PDF file of the opinion. The sites are slammed, but the PDF is much easier to read than the Scribd scan; I’m reading it now.

• Official site
• Mirror provided by the official site

The Federal District Court’s official website for the Prop 8 trial is here, but is incredibly slammed currently. The site has links to all of the various filings that are referenced in the decision itself.

Update2: I’m still reading the decision. I’m amazed at the number of pundits, on the pro- and con- sides of this debate, who are able to make detailed pronouncements about this decision so quickly. I need to step up my decision-analysis speed, I guess. Likely will be tomorrow before I post a detailed analysis.

Update3: I’ve removed the Scribd embed, as the PDF file links are now responding reasonably. I’ll put my analysis in a new post.

You could say that I’ve been a bit disengaged from local politics, seeing as how I was told for the first time this morning that there’s a vote on this today:

Proposition C

Shall the Missouri Statutes be amended to:

• Deny the government authority to penalize citizens for refusing to purchase private health insurance or infringe upon the right to offer or accept direct payment for lawful healthcare services?
• Modify laws regarding the liquidation of certain domestic insurance companies?

It is estimated this proposal will have no immediate costs or savings to state or local governmental entities.  However, because of the uncertain interaction of the proposal with implementation of the federal Patient Protection and Affordable Care Act, future costs to state governmental entities are unknown.

After work, I’ll be heading straight to the polling place to cast a “yes” vote.  As we learned from the Virginia lawsuit against ObamaCare, these state laws are essential for states to establish “standing” to bring suits against the federal government in order to stop the enactment of the individual mandate.

Naturally, I’m torn about relying on the courts to undo bad legislation (and ObamaCare is the single worst piece of legislation ever).  The courts are a complete crapshoot when it comes to figuring out how they’ll rule on anything (remember how shocking Kelo was?) and overturning any part of ObamaCare would carry the stigma of “judicial activism” (even though I don’t really believe that to be the case).  My preference would still be for the elected branches to eventually undo it, even if it takes years to do.

However, I can’t resist the urge to support an effort by my state and others to put some fire back into the 10th Amendment.  If the individual mandate is struck down thanks to litigation brought by the states, it would be a delicious comeuppance to the Obama Administration, considering its use of the federal judiciary to block state legislation that it doesn’t like.

UPDATE:   My civic duty is done.  If you’re looking for ballot returns and results, they’re here.  Prop C is well on its way to a resounding victory and I hope it scares the crap out of Washington Democrats.  It’s unclear if this will be a referendum on Obama, but only an idiot would say that it’s going to be anything but a repudiation of ObamaCare.

The Defense of Marriage Act has two provisions:

• A Full Faith and Credit Clause instruction allowing states to disregard the marriage decisions of other states.
• A Federal definition of marriage as only heterosexual marriage to be applied to all Federal laws, rules and regulations that refer to marriage

In a pair of companion cases, the latter provision (Section 3 of DOMA) has been declared unconstitutional on Fifth Amendment Equal Protection grounds and on Tenth Amendment Federalism grounds. It might be worth noting that the judge in this case, Joseph L. Tauro, was appointed to the Federal District bench by Richard Nixon. Not a Carter/Clinton/Obama appointee.

The first case was Gill v. Office of Personnel Management, filed by a number of individuals in Massachusetts who are married under Massachusetts law but denied recognition under Federal law. This decision can be read here (PDF file).

The second case was Commonwealth v. United States Department of Health and Human Services, filed by the state of Massachusetts last year, challenging that DOMA intrudes on states’ rights and creates undue burden on the states. This decision can be read here (PDF file).

Both cases were decided on summary judgment, without trial, as there were no questions of fact to be addressed - each side stipulated to the affidavits of the other. In both cases, the Federal government’s motion to dismiss was denied, and the plaintiffs’ motion for summary judgment was granted, except for one claim in Gill which was dismissed on jurisdictional grounds.

I expect the Religious Right and many conservatives to be lambasting these decisions as more “activist judging”. In doing so, they will demonstrate again the difference between libertarians and conservatives. These decisions are anything but activist, depending heavily on the Constitution’s restrictions on the reach of Congress, legislative and jurisprudential history, and states’ right. These decisions are, in fact, quite libertarian. The Commonweath decision, in fact, is likely to make progressives squirm, as Jack Balkin points out at Balkanization, because of its strong 10th Amendment basis.

In addition to this being the first day of Elena Kagan’s hearings before the Senate Judiciary comittee, today is also the final day of the Supreme Court’s 2009 term. Several major decisions remain outstanding from cases heard this term. I won’t really be able to go through them all in detail, but I’ll update this summary after the decisions are announced and do followup. The following opinions are expected:

Bilski v. Kappos (also referred to as in re Bilski) is a case involving the patentability of business methods. The question before the Court:

Whether a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (”machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, and whether the “machine-or-transformation” test for patent eligibility contradicts congressional intent that patents protect “method[s] of doing business” in 35 U.S.C. § 273.

Many people in various areas of punditry, primarily Open Source/Free Software advocates, have predicted that Bilski will be the end of software patents. This impacts me personally, because I am the inventor or co-inventor on 5 software patents, with a couple more applications outstanding. Patent attorneys I’ve spoken with expect the Court to rule narrowly, specifically to financial business methods, and avoid the software patent issue entirely. We shall see.

Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board is a case challenging Sarbanes-Oxley on separation of powers grounds. The question before the Court:

Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles – as the Public Company Accounting Oversight Board is overseen by the Securities and Exchange Commission, which is in turn overseen by the President – or contrary to the Appointments Clause of the Constitution,  as the PCAOB members are appointed by the SEC.

This could kill SOX entirely. Whichever way this one goes, it’s likely to provide ammunition to both sides for the November elections.

McDonald v. City of Chicago is the Chicago gun case, on whether the 2nd Amendment is incorporated to the States (and hence making Heller applicable to the states). The question before the Court:

Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

As I’ve discussed before, I expect the Court to go all hypocritical on this - conservatives pushing for incorporation via substantive due process, liberals opposing incorporation, with Kennedy as the swing vote. I expect it to be 5-4 in favor of incorporation, completely avoiding the Privileges or Immunities argument. I could see Thomas voting with the liberals, against incorporation, which would make things very interesting.

Christian Legal Society v. Martinez involves a student group at the University of California Hastings School of Law that was denied recognition because of its discriminatory (in this case, perceived to be anti-gay) policies. The question before the Court:

Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.

I’ve thought about this case a fair amount, and found myself on both sides of the argument at various points. Because this case was heard very near the end of the term, SCOTUSblog posits that it might be dismissed or scheduled for rehearing. I hope they don’t do that.

Update 1: McDonald v. City of Chicago reversed and remanded, 5-4 (below the fold)
Update 2: Christian Legal Society v. Martinez affirmed and remanded, 5-4
Update 3: Bilski v. Kappos affirmed unanimously.
Update 4: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board affirmed in part, reversed in part and remanded, 5-4

Given my involvement with numerous LGBT-rights and civil liberties organizations, I see a lot of stuff related to “Don’t Ask, Don’t Tell”, and the arguments presented by opponents to the repeal have me really confused.

Basically, they argue that allowing gays to serve openly will hurt morale, affect unit cohesion, impact preparedness, make straight soldiers fearful, etc, etc. These arguments come from social conservative organizations, from military leaders, from pundits all over.

But these arguments all seem to be missing a fundamental point.

There are gays in the military, serving discreetly, and some might say dishonestly. If gays were inherently bad soldiers, then we already have problems, don’t we? For soldiers who don’t want to serve with gays, isn’t it worse to be serving with unknown gays than to be serving with known gays (e.g. the “who’s looking at me in the shower” argument).

For the life of me, I cannot fathom the logic that says it’s better to serve with closeted gays than with open gays - e.g. arguing that sexual assaults will be more likely with openly gay soldiers than with closeted gays - as if the sexual assault (any sexual assault) isn’t indicative of someone unfit to be a soldier in the first place.

If there were no gays in the military, then perhaps there would be some logical consistency to these arguments. Or if they were arguing for an outright ban on gays in the military (which a few are, but most aren’t).

But as arguments to make gay soldiers stay closeted? These arguments just make no sense whatsoever.

With all the cop shows over the years, is there anything regarding police procedure that is more recognizable then the Miranda warning? I bet you most of our readers could recite the entire warning right off the cuff. The right to remain silent and to have counsel provided if wanted, pretty straight forward stuff, right?

Dwex sent me a heads up on a recent SCOTUS ruling regarding Miranda. Having read the ruling, it seems like a no brainer to me and provided yet one more excuse for incredulity at 4 justices for not getting the obvious (Sotomayor said this stands Miranda on it’s head) what do you think?

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence.  Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

I’m not getting the outrage here,isn’t this stuff obvious? Sure, you have a right to remain silent but don’t you also have a right to change your mind? Case law is ubiquitous in documenting examples of criminals who, after claiming Miranda protection, later decided to cooperate and decided to talk, even without the rubber hoses and glaring desk lamps. Without a clear and concise waiver, either verbal or written, can’t the police assume that you are still mulling it over? After all, silence should not be interpreted as some finality, some decisions are not made spur of the moment so it seems reasonable to me that silence means only ,“I have not as yet decided what I want to do with you guys”.

In the past the burden of proof has always been on the police to ensure an understanding of Miranda with regards to any questioning or confessions. This is done by informing all suspects of their Miranda rights (once the investigation has focused on a suspect) and then obtaining a written or oral waiver. In my old department (I assume it is similar everywhere) Miranda was written on a police form that we had to read to the suspect. After this recitation, there were two questions:
“Do you understand these rights as I have read them to you?”
“Keeping these rights in mind, do you wish to talk to us about that which you have been arrested for?”

There was a line near each where we were required to right done his exact words regarding these two questions, this was mandatory. And if the suspect would not answer either question, then no questions were asked of him, but this never meant that we could not go back at him later. If, during the course of continuing with the investigation or booking him, a revisiting of Miranda was warranted (each officer makes this call depending on what he has) it was always acceptable to do this and was in perfect keeping with the spirit of Miranda.

It should also be remembered that any violation or massaging of Miranda does not automatically throw the entire case out the window, it only means that any answers given to questions without the waiver are inadmissible in court, if there is other evidence that sinks him, too bad for him.

Consider this an open thread on current events. I’ll just make a few comments about some stuff that’s in the news that I don’t feel warrant a full post from me, but are probably worthy of discussion.

Proposed Repeal of “Don’t Ask, Don’t Tell”

The House voted, largely along party lines, to add repeal of “Don’t Ask, Don’t Tell” to the defense appropriations bill currently being debated; the final House vote may be today. The Senate Armed Services committee voted yesterday in favor of an identical amendment to its version of the bill, also largely along party lines (one defector from each side). The Senate bill likely won’t be voted on until next month.

As is probably a surprise to nobody, I’m quite pleased with this development. DADT is self-defeating and needs to go. The text of the amendment is fairly politically savvy. It ostensibly puts the decision when (and if) to actually implement the change in policy in the hands of the military, not political, leaders. It explicitly calls out that DOMA (another piece of legislation that needs to be repealed) is not impacted by this. My Senator is the one who crossed the aisle to vote against it; I’ll be writing to him about that.

Conservatives are in an uproar over this, of course. John McCain is threatening to filibuster the appropriations bill unless this amendment is removed, but I don’t see a filibuster succeeding. What GOP candidate wants to be on record voting against funding the military in an election year? It’s also interesting that this issue has Lieberman (who sponsored the amendment) and McCain on opposite sides - something of a rarity in defense/military matters in recent years. The Religious Right is in an absolute uproar over this; the Family Research Council is claiming that repealing DADT will increase the incidence of gay rape in the military. The bizarre logic that it’s better to have closeted gays than open gays sets my head spinning. It makes no sense.

Anyhow, I’m hoping that this actually makes it through into the final legislation. My guess is that it gets taken out in conference, and everyone will have good press and good political messaging in the end - the Democrats can claim “well, we tried”, the Republicans can claim “we won”, and Obama gets the political cover he needs on the issue (since he’s a faint-hearted LGBT-rights supporter if ever there was one).

Speaking of Obama and cover…

Yesterday, the Supreme Court heard oral arguments in John Doe #1, et al. v. Reed, et al. (PDF file of transcript). This is the case we’ve discussed a few times before involving the disclosure of signatures on the petition for a referendum to overturn Washington State’s domestic partnership law last fall. I have a feeling that this one might well come down heavily in favor of requiring disclosure. Justice Scalia apparently was the attack dog:

Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots.  When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr.  ...

Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud.  “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition.  Politics, the Justice went on, “takes a certain amount of civic courage.  The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

Part of Scalia’s questioning covered the same territory that Eugene Volokh took earlier - that referendum petitions are part of legislative action, not political discourse covered by First Amendment speech and/or assembly protections:

But Justice Scalia was, if anything, a more aggressive advocate for that view of the case.  “A petition-signer,” he said, “is taking part in the legislative process.”  He suggested that there was no court case holding that the First Amendment shields “activity that consists of the process of legislation.”  In fact, Scalia said, “for the first century of our existence” even casting a ballot was done in public, and ballots were of different colors so everyone could know how an individual had voted in a given contest.

It’s really interesting how aggressively Justice Scalia was going after the petitioners’ position. He dominates the questioning. Check out this exchange, at the end of the petitioners’ side of the arguments:

JUSTICE SCALIA: You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.

MR. BOPP: I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats.

JUSTICE SCALIA: Well, that’s bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn’t mean that you—you have to eliminate a procedure that is otherwise perfectly reasonable.

Chief Justice Roberts also attacked the facial challenge to the state’s disclosure law:

That one of these cases happened in California, which has perhaps the strongest domestic partnership laws in the country, makes this even more chilling:

Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.

One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.
...

What happened next is even more chilling: Without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.

Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property. The only memento Clay has is a photo album that Harold painstakingly put together for Clay during the last three months of his life.

Note the key part up at the top - they had all the appropriate legal documents in place. The article does not state whether they were listed in California’s Domestic Partnership Registry, but in the face of powers-of-attorney, that shouldn’t matter. This is absolutely unconscionable.

Last week Obama issued a Presidential Memorandum to HHS regarding hospital visitation:

I was shy on blogging about my nephews, out of respect for my brother’s privacy. I still am, but I now spend my Sundays with my nephews when we can. This Easter Sunday was a great one. I got some good sleep on Saturday (somewhat of a rarity) and was ready to go on Sunday morning. I called my brother on both Saturday to announce myself coming, and the on Sunday to go. he scooped me up and we spent our quality time. I never realized how domesticated one becomes after kids, running errands was our free time.

In the back of my head was having the ability to see and hold my nephews. Last week they made a huge leap in awareness, they are now (after four months) very vocal and alert. They are starting to recognize me, and beginning to have opinions on things. The American names are Nathan and Ethan. Nathan is the big tough guy, and Ethan is the squirrelly one. They’re both trading off on who can sleep. right now Nathan keeps us up, but before it was Ethan. They have a long lineage of sleepless relatives, it comes with the territory.

It’s a very surreal experience. You just pass the hours focused on them, and wonder what their next moves will be. Our two families have a pretty large hill to climb to reconciliation. Half American, half Afghan, half Christian but half Muslim. The bridge? Two stunning and wonderful children. It’s working, and I have faith that it will continue to work. The great thing about this country is that they will have choice. Choice many of us took for granted. From the get, they will be fluent in English, Farsi, and I will try and teach them some Spanish.

These little guys are pretty damn cool, I must admit. They just do what they do, and every experience is new to them. Nathan seems to be the first one to attach to his uncle, and he’s to the point that he accepts me. I never thought I would be so impressed by that, but I am. Ethan is my other favorite, but for his reasons. He’s a pretty smart Little Tike, and much more about making the mental connection with you. You just can’t pick a favorite, because as soon as you might, the other does something that makes you melt.

Oh yeah, there was a huge earthquake today. Too far away from us to cause damage, but we did feel it. Nathan and Ethan thought it was really fun, and giggled and cooed the entire time. Bump in the road for us. I hope that Baja, CA people can recover safely, and the relative lack of damage has been a blessing to us all. This one was a “roller” which is much better than a “shaker”.

So it wasn’t bad enough that the Phelps clan picketed a Marine’s funeral. And it wasn’t bad enough that the judgment against the Phelps clan was overturned on appeal (which is headed to the Supreme Court). Now the 4th Circuit has granted Phelps’ motion to recover court costs from the family:

The father of a Marine whose funeral was picketed by the Westboro Baptist Church says an order to pay the protesters’ legal costs in a civil claim is nothing less than a “slap in the face.”

“By the court making this decision, they’re not only telling me that they’re taking their side, but I have to pay them money to do this to more soldiers and their families,” said Albert Snyder, whose son, Lance Cpl. Matthew Snyder, was killed in action in Iraq in 2006.

Now, strictly speaking, Phelps & clan are pretty much in the right in asking for this result, and the 4th Circuit is pretty much following procedure in granting it - Phelps did win the appeal. They could hold the award in abeyance while the SCOTUS appeal goes forward, perhaps. But if they didn’t make the award, they’d just provide another legal vehicle for Phelps.

Never one to avoid getting a last dig in:

Margie Phelps, the daughter of Fred Phelps and the attorney representing the church in its appeals, also said the money that the church receives from Snyder will be used to finance demonstrations. But she also said that the order was a consequence of his decision to sue the church over the demonstration.

“Mr. Snyder and his attorneys have engaged the legal system; there are some rules to that legal engagement,” said Phelps, a member of Westboro who says she has participated in more than 150 protests of military funerals.

“They wanted to shut down the picketing so now they’re going to finance it,” she said.

To paraphrase Queen - Beelzebub has a devil put aside for the Phelps clan.

Update: Apparently the dad isn’t going to pay:

The father of a Marine killed in Iraq whose funeral was picketed by anti-gay protesters told Fox News he will defy a court order and not pay the protesters’ appeal costs.

Albert Snyder, of York, Pa., told Fox News he does not intend to pay $16,510 to Fred Phelps, the leader of Kansas’ Westboro Baptist Church, which held protests at Marine Lance Cpl. Matthew Snyder’s funeral in 2006.

“I don’t think I’m going to be writing a check until I hear from the Supreme Court,” Snyder told Fox News on Tuesday. “I’m not about to pay them anything.”

While I agree with the sentiment, I would say this isn’t a very wise move. Getting yourself a contempt citation isn’t smart.

I must say, this really surprised me. I knew very little about Switzerland (nice skiing, great tasting chocolate) and always assumed that their fighting instinct was one notch above the French.

Although the fact that they invented fondue should be reason alone for total invasion and annihilation, the ubiquity of all those Sig 550’s within grabbing distance of your average Swiss citizen, and the mandatory basic military training for all its male citizens provides the world with a nation that can easily defend itself at the drop of a hat.

Switzerland is a country in many respects like the U.S.

There are three main governing bodies on the federal level:[33] the bicameral parliament (legislative), the Federal Council (executive) and the Federal Court (judicial).

And, instead of a country made up of individual states:

The Swiss Confederation consists of 26 cantons

It seems that the term “A well regulated militia” takes on a whole in meaning there.

The Swiss army has long been a militia trained and structured to rapidly respond against foreign aggression. Swiss males grow up expecting to undergo basic military training, usually at age 20 in the Rekrutenschule (German for “recruit school”), the initial boot camp, after which Swiss men remain part of the “militia” in reserve capacity until age 30 (age 34 for officers). Each such individual is required to keep his army-issued personal weapon (the 5.56x45mm Sig 550 rifle for enlisted personnel or the SIG 510 rifle and/or the 9mm SIG-Sauer P220 semi-automatic pistol for officers, medical and postal personnel) at home with a specified personal retention quantity of government-issued personal ammunition (50 rounds 5.56 mm / 48 rounds 9mm), which is sealed and inspected regularly to ensure that no unauthorized use takes place.

When their period of service has ended, militiamen have the choice of keeping their personal weapon and other selected items of their equipment. In this case of retention, the rifle is sent to the weapons factory where the fully automatic function is removed; the rifle is then returned to the discharged owner. The rifle is then a semi-automatic or self-loading rifle.

At an effective range of 400 meters, auto/semi-auto, it makes little difference, and no assault weapons ban for them.

This whole concept makes a lot of sense, on a number of levels. First off, the population as a whole learns a healthy respect and a working education for firearms, their limitations and safety procedures. The basic principle of survival, the protection of one’s self and family, and the preservation of one’s property ( a man’s home really is his castle) is codified and sanctioned. The crime rate (property crimes-burglary, robbery, home invasions) are reduced improving not only the quality of life but the reliance of a police force that may not be there when you need them. And, a healthy nationalistic pride in one’s country is fostered, with an understanding that each citizen is the protector and defender of mother country.

“The key to freedom is the ability to defend yourself”, yep, and there is no greater despair than knowing that your life is not within your control.

His “Holocaust” analogy was also apt. To resist, to struggle, to at least put up a fight is seminal in our basic instincts.

A short story, my first year on the job working West Hollywood, I get called to an apartment to take a stolen auto report. This old couple greets me at the door and welcomes me in. The living room is adorned in old style European architecture. As they tell me the story of their recalcitrant son, hooked on drugs, out of control, and just drove off with their only car without permission, I notice a series of numbers tattooed on the inside forearms of the couple. With Jewish accoutrement adorning the room, it took about 2 seconds to figure out what those tattoos signified. I will never forget that night.

H/T: iowntheworld