Civil Rights

Can an openly gay judge rule on the constitutionality of a same sex marriage ban?  That was the question that supporters of Proposition 8 posed before a federal court.

The court, in a 21-page opinion, denied the motion to vacate the judgment.  The movers in the suit argued that Judge Walker should have been disqualified from presiding over this case based on “statutes require a federal judge to recuse if, inter alia, the judge has a substantial non-pecuniary interest in the case, or if there is some fact that brings the impartiality of the judge reasonably into question. If the judge does not recuse, a motion for disqualification may be made by a party.”

The “Long-term Care Ombudsman,” a federal program in every state, facilitates details of daily living for disabled or incapacitated residents of long-term care homes. Ombudsmen fulfill their duties under the protection of strict federal confidentiality guidelines established to protect the residents from potential retaliation from management.

In an editorial appearing this morning, the Sacramento Bee argues that “President Obama’s foreign policy looks like President Bush’s.”

Ross Douthat writes, “For those with eyes to see, the daylight between the foreign policies of George W. Bush and Barack Obama  has been shrinking ever since the current president took the oath of office. But last week made it official: When the story of America’s post-9/11 wars is written, historians will be obliged to assess the two administrations together, and pass judgment on the Bush-Obama era.”

I do not know what was more stunning last night, the news that Osama Bin Laden was killed finally or the realization that the attacks on September 11 occurred nearly ten years ago.

To drive home the point, as we watched transfixed yet again to the TV, we had to explain to my seven-year-old nephew why this was so important and why he would remember this for a long time.  Indeed, it sunk in that the attacks occurred before he was even born.

That is a question that the California State Supreme Court will now grapple with as the court decided last week to rule on whether sponsors of ballot initiatives have special authority under state law to defend the measures in court when state officials refuse to do so.

Last month, the 9th Circuit Court of Appeals asked the California Supreme Court to weigh in on the decision of standing.

People will have to forgive me for weighing in on Egypt and the essentially bloodless revolution.  I have two points and both of them link well to local issues.

The people of Egypt brought down a long and at times brutal tyranny armed only with their voices.  They achieved their objective in 18 days primarily because they could not be mollified by promises of incremental change and partly because the military refused to turn on the people of Egypt as militaries have in places like China’s Tiananmen Square.

The story, however, begins nearly 16 years ago. On April 19, 1995, I was a four year student at Cal Poly.  I was sitting in my philosophy case, and someone walked in and said that there had been a bombing in Oklahoma City.  We surmised it must be Islamic terrorists.  I remember early reports of seeing known Islamic extremists around the site.

It is a great irony of democracy that some of the most contentious issues will be decided in part by electoral races that few were following closely.  Yet that is precisely what may happen with the closely-contested and just-concluded California Attorney General’s race, where Kamala Harris edged out the Republican District Attorney from Los Angeles, Steve Cooley.

Mr. Cooley, unlike the current occupant Jerry Brown and unlike his opponent Ms. Harris, vowed to defend the ballot measure, Propostion 8, that was passed by the voters in 2008.  Kamala Harris prevailed and has vowed to continue the now-Governor-elect Brown’s policies.

As I approach 40 in the next few years, I am reminded of something I learned during my teen and early twenty years, how out of touch older adults are to popular culture.  In another lifetime, I used to have a period column during my days in undergraduate school, devoted to such topics.

I always swore that I would never make the same mistakes and I always admired the adults that could still relate to younger people.  I bring this up in light of watching Bristol Palin’s rather awkward pitch for abstinence alongside Mike Sorrentino, who is himself a bit of an icon on MTV’s reality show, “Jersey Shore.”

Yesterday marked the ninth anniversary of the attacks on 9/11.  Like most people in this country, I have very vivid memories of 9/11.  I rushed off to the old 24 Hour Fitness over on Second Street to meet up with my personal trainer.  When I got there I was shocked to learn that Cecilia (we would not be married until the next summer) was on the phone calling for me.  As she was trying frantically to explain that we had been attacked, I caught the TV screen and there was something not right going on.

It took a second and things became more clear, the Twin Towers were on fire, it looked like a bomb or something hit them.  As I was on the treadmill warming up, watching the TV, I could hear the news broadcaster say something about the AP, a very reputable source, saying that one of the towers had collapsed.  As I was warming up I watched with fear and horror the second tower collapse.  It looked like someone had demolished it.

The State Supreme Court ruled on Wednesday that Governor Arnold Schwarzenegger and Attorney General Jerry Brown have the right not to seek appeal of a federal judge’s ruling that struck down the voter-approved measure.

The decision by the Governor and Attorney General not to argue in support of Proposition 8 has raised legal questions as to whether anyone has standing to appeal the decision from this summer by Federal Judge Vaughn Walker, which struck down the ban on gay marriage as a violation of both due process and equal protection under the law.

The long and arduous debate over strict-constructionism and original intent has always seemed to me to be displaced.  The idea that we can somehow infer the intent of the drafters of the constitution runs into problems when the question turns to which framer do we follow.  For it seems there were quite a few, and many had contradictory ideas.  Indeed, how can we follow the framers when the framers themselves were quickly polarized on the issue of the intended role of the federal government?

Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation.  There is no plain meaning and application of a document that was intentionally written to be vague and flexible.

I have defended Jerry Brown’s decision not to defend Proposition 8 despite his role as Attorney General.  Basically, the Attorney General has the duty to defend California’s laws from legal challenge unless they are specifically unconstitutional under federal law.  We can quibble whether the case of Prop. 8 is sufficient, but he did what he did.

However, there is now the increasing belief that Jerry Brown’s actions may have unintended consequences that could put the entire legal challenge to Proposition 8 at risk.

The roller coaster ride for same-sex couples and their advocates continued Monday, as the 9th U.S. Circuit Court of Appeals stayed Judge Vaughn Walker’s decision while the case is on appeal.  Lawyers for the plaintiffs in this case, two gay couples who challenged the ban, said that they would not appeal the stay.

Instead they seemed satisfied that that the court had agreed to fast-track the case by scheduling oral arguments for December 6, 2010.

Initially, proponents of same-sex marriage rejoiced on Thursday as Judge Vaughn Walker announced that he would lift his stay on August 18 and declined to issue a permanent stay from the ruling from last week that overturned Proposition 8’s ban on same-sex marriages.  However, those feelings were relatively short-lived as reality sunk in.

Judge Walker offered a cautious approach which will allow defendants and supports of the ban to appeal to the 9th Circuit to stay the ruling.  If that fails, they could go to the US Supreme Court to obtain a permanent stay of the ruling while the case is pending appeal.

Last week Chief U.S. District Judge Vaughn Walker invalidated Proposition 8, the measure that banned gays from marrying.  Today at noon he will determine whether or not to impose on a stay on his decision, or to allow his decision to go into effect. This would  once again allow same-sex couples to marry, as they had from the summer of 2008 until Proposition 8 was passed and went into effect.

The decision by Judge Walker, which has provoked very strong reaction on both sides of the political divide, struck down the proposition as a violation of federal constitutional guarantees of equal protection and due process.

In the past weeks there were two major court decisions, not handed down by the US Supreme Court, both of which struck down laws, one law enacted by the Arizona State Legislature and one by the California voters through the initiative system.  Both were met by cries of overthrowing the will of the people, judicial activism, unelected judges, and more.

The cry from the right on the issue of Proposition 8 could be heard loudly and immediately.  The words often rarely varied.  “This decision, whatever its final resolution, serves as an undeniable reminder of the power of Federal judges. A single unelected judge nullified the will of the voters of California as expressed through the electoral process,” wrote Albert Mohler.