by SSFC on December 21, 2008
Not surprisingly, given that the office is occupied by former “Governor Moonbeam” Jerry Brown, he feels that the amendment barring same sex marriage should be invalidated. Also not surprisingly, given that it’s Governor Moonbeam, he takes a novel approach to the argument, one that libertarians may like: that same sex marriage is an inalienable right which cannot be taken away even by constitutional amendment. (The fighting Ninth Amendment to the United States Constitution does not appear to be cited, as it’s a matter of state law).
Kip Esquire, who is a libertarian and who strongly favors same sex marriage rights, has given Brown’s arguments a thorough review, and seems unimpressed. Key criticism:
If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”
More analysis of the Brown brief may be found at Mr. Esquire’s site.
Tagged as:
Jerry Brown,
same-sex marriage
- Lots of coverage of litigation-reform angles of the election over at my other website, Point of Law (here, here, here, and here). For me the heartbreaker of the evening reform-wise was the surprise defeat of the very fine Chief Justice of the Michigan Supreme Court, Clifford Taylor. He will be sorely missed.
- Interesting perspective from Bill Marler, the Seattle plaintiff’s attorney who’s become well-known for virtually “owning” the issue of food poisoning in the press: “Obama may actually see tort reform as a way to show he is a moderate”. [Jane Genova, Law and More]
- Voters in California and elsewhere ignored the urgings of this site and wrote anti-same-sex-marriage provisions into their constitutions. There are many possible interpretations, but one is that the California Supreme Court will be Exhibit #2,971 toward the proposition that judicial activism does not always improve the well-being of its intended beneficiaries. Garrison Keillor titled one of his Lake Wobegon books We Are Still Married, and Eugene Volokh looks at the question of whether same-sex couples previously wed in California can say that (Nov. 5; more, Dale Carpenter, Jonathan Rauch). In other news, “Yesterday, 57 percent of Arkansas voters decided that the state’s 9,000 children in foster care are better off there than adopted by a gay couple.” [Radley Balko, Reason "Hit and Run"]
- As to Topic A, the presidential election, I’ve decided to retire to the countryside and raise heirloom eggplants. Just kidding! Actually, as one who sat the election out after Giuliani quit the race, I’m happy for my friends and colleagues who are happy, awestruck by the historic moment like everyone else, and hoping for the best (i.e., centrist governance) policy-wise.
Tagged as:
Arkansas,
Barack Obama,
California,
Michigan,
politics,
same-sex marriage,
tort reform
- Litigants’ “not about the money” assertions: Mark Obbie has further thoughts on reporters’ uncritical deployment of this cliche, and kind words for our archive of posts on the subject [LawBeat]
- Lawyer on the other side of that much-circulated “I’m sorry” deposition-dispute letter has his say [Markland and Hanley via Turkewitz and Above the Law]
- Local authority in England tells gardener to remove barbed wire from wall surrounding his allotment, thieves might get hurt on it and sue [Never Yet Melted, Steyn/NRO Corner]
- Same-sex marriage in Connecticut through judicial fiat? Jonathan Rauch says no thanks [IGF]
- Lawyers are back suing despite reform of FACTA, the credit-card-receipt “gotcha” law, but insurance might just dry up [Randy Maniloff at Point of Law]
- “Racing to the trough” — auto lenders latest to ask bailout though original TARP rationale of liquidity fix seems remote [Naked Capitalism]
- “To be a green-certified property (pretty important in crunchy Portland) there must be an absolute prohibition on smoking, including outdoor spaces.” [Katherine Mangu-Ward, Reason "Hit and Run"]
- (Failed) claim in trademark case: “the term ‘electric’ is not commonly used by the general public to describe a source of power for watches” [TTAB via Ron Coleman]
Tagged as:
accolades,
assumption of risk,
Connecticut,
criminals who sue,
FACTA,
not about the money,
premises liability,
same-sex marriage,
smoking bans,
trademarks,
United Kingdom
This November, voters in California, Arizona and Florida will decide on proposals to amend their state constitutions to include permanent bans on same-sex marriage. A new Field poll indicates that California voters are leaning heavily against that state’s Proposition 8 by a 38 to 55 percent margin, almost double the margin by which the measure was failing in July, despite an intensive “pro” campaign by conservative religious forces. A recent Quinnipiac poll in Florida shows the amendment there still in the lead, but not by the 60 percent majority needed to pass a constitutional change under that state’s law. Arizona voters rejected a ballot measure of this sort two years ago, and opponents have high hopes of defeating it again.
I’ve editorialized repeatedly against these measures in this space and will repeat some of what I wrote four years ago [click to continue…]
Tagged as:
Arizona,
Arkansas,
California,
Florida,
foster care,
same-sex marriage
Virginia Postrel wonders why publicity-hound attorney Gloria Allred wouldn’t let her clients have the spotlight for once last week. “This is not just rude. It’s bad politics. If you want to get Californians to vote against a state-constitutional amendment to ban same-sex marriage, you should keep the obnoxious leftist lawyers out of sight and highlight the happy families.” (Jun. 18).
Tagged as:
Gloria Allred,
same-sex marriage
- Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furor over complaint against Steyn/Macleans [National Post]
- More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled — consent decrees tying system’s hands are one reason [Inquirer]
- U.K.: Man threatened with legal action for flying pirate flag as part of daughter’s birthday party [Guardian]
- Bankruptcy judge doesn’t plan to accept at face value Countrywide’s claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
- Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where’s that ethics form on the Chesley flight? [Dayton Daily News]
- Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
- More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students — as suspected, she’s a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
- Covert plan to sabotage Chinese economy? [Wilson Center event]
- What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. — not to mention falls — are “never events” [KevinMD various posts; earlier]
- Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn’t do [Rauch @ IGF, Carpenter @ Volokh, earlier]
- Private service rates the safety of charter air providers — but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]
Tagged as:
bankruptcy,
Countrywide,
Dartmouth,
domestic partners,
free speech,
free speech in Canada,
hospitals,
libel slander and defamation,
Marc Dann,
Mark Steyn,
Missouri,
never events,
Ohio,
Philadelphia,
regulation through litigation,
roundups,
same-sex marriage,
school discipline,
Stan Chesley,
tort reform
Stephen Dunne, 30, flunked the Massachusetts bar exam and now says it was because he refused on principle to answer an exam question concerning the rights of two married lesbians, their children and property. He claims the hypothetical, which concludes with the question “What are the rights of Mary and Jane?”, violated his First Amendment rights and served as a “screening device” to exclude persons like himself who disapprove on religious grounds of the state’s gay marriage law. “But Boston attorney Tom Dacey doesn’t believe the case will go very far. … ‘Lawyers have to answer questions about legal principles they disagree with all the time, and that doesn’t mean we’re endorsing them,’ said Dacey, a director of Goulston & Storrs’ litigation group. ‘You might be somebody who is morally opposed to divorce, but have to interpret the divorce laws of the commonwealth to answer a question about who property is passed to.’” (Donna Goodison, “Bar-exam flunker sues: Wannabe rejects gay-wed question, law”, Boston Herald, Jul. 6 and sidebar; AP/TheBostonChannel.com, Jul. 6).
P.S. He wants $9.75 million. And On Point News has a copy of the complaint (PDF). Update: Now he wants less, reports Above the Law (Jul. 13).
Tagged as:
divorce,
family law,
Massachusetts,
same-sex marriage
As we noted back on Mar. 20, 2005, some Religious Right campaigners appear to have talked out of both sides of their mouths on the question of whether their proposed anti-gay-marriage amendments in states like Michigan would put an end to the availability of existing health insurance benefits for the domestic partners of employees at public entities such as cities and universities. When urging voters to approve Proposal 2, these campaigners suggested that the measure would leave existing benefits undisturbed; once it was on the books, they supported efforts to invoke it to nullify the benefits. Now a Michigan appeals court has agreed that Proposal 2 does ban public-employee DP benefits. Ed Brayton of Dispatches from the Culture Wars has details (Jul. 5, 2006; Feb. 4 and Feb. 5, 2007; see also Nov. 22, 2006) on the, um, fancy footwork engaged in by two Religious Right litigation groups, the Thomas More Law Center and the Alliance Defense Fund. For more, see John Corvino, “A tragic lie in Michigan”, Between the Lines/Independent Gay Forum, Feb. 8; Jonathan Cohn, “Spouse Abuse”, The New Republic, Feb. 15; Andrew Sullivan, Feb. 15.
Tagged as:
domestic partners,
family law,
Michigan,
Ohio,
same-sex marriage
“The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law.” (David Boaz, “Marriage measure is an amendment too far”, Examiner.com, Oct. 30). For more of the many, many reasons to vote no, see Sept. 20, 2006, May 31 and Nov. 2, 2004, etc., etc.
Update: David Frum gloats — and quite prematurely, it would seem.
Tagged as:
family law,
same-sex marriage
As in earlier rounds (May 31 and Nov. 2, 2004, etc.), some proponents are advancing the view that despite its sweeping and ambiguous language, the amendment wouldn’t really endanger any existing legal rights of unmarried persons in Virginia. The Roanoke Times editorially rejects that view: “The legal views conflict sharply. This can mean just one thing: years of litigation under every facet of law that touches upon human interactions. In the antagonistic court arena, the relationships of families and friends will be ripped apart. … Voters should reject this unfair amendment, which has the potential for so many unintended consequences.” (“The anti-family amendment” (editorial), Roanoke Times, Sept. 19). See also Mar. 20, 2005 (sequence of events in Michigan).
Tagged as:
family law,
Michigan,
same-sex marriage
Lawsuits filed against the city of Baltimore demand hundreds of millions of dollars, but the city pays out only a minute fraction of that sum — one of many reasons being that “the city caps awards for lawsuits at $200,000, save for intentional bad acts by city employees.” An editorial in the Baltimore Examiner quotes me on the subject (“Slow lawsuits; charge losers fees”, Jul. 13). For more on New York City’s tort predicament, see Jun. 15.
Last month Overlawyered.com was named “Web Site of the Day” by the Bulletin Board at the St. Paul Pioneer Press, one of the Twin Cities’ two big papers (Jun. 2). The British publication The Lawyer cited our coverage of Bill Lerach’s Enron fees (Jun. 5). And New York-based journalist Robert A. George (the “good” Robert George) calls this website “great”, though he erroneously thinks me a lawyer (Jun. 5).
I’ve also been quoted on same-sex marriage issues in a variety of venues, including by Lou Chibbaro Jr. in the Washington Blade (“Amendment bars states from marrying gay couples: experts”, Apr. 20); Jonathan Rauch at MarriageDebate.com (May 6); Andy Humm, “Gay Marriage Ruling Highlights a Changing Court”, Gotham Gazette, Jul. 10); and the Robert A. George post above. For more of my views on that subject, see Jun. 2, etc.
Tagged as:
about the site,
Baltimore,
Bill Lerach,
same-sex marriage
Among its other defects (see links gathered here), this misbegotten proposal would impose a single federalized outcome on states and localities which currently take widely differing views of same-sex marriage. Some FMA advocates have sought to depict the federalist objections to the amendment as mere makeweight and window dressing — tactical objections by opponents who dislike the proposal for its substance and are merely casting about for arguments against it. One hopes these advocates were suitably chastened in March when James Q. Wilson, doyen of conservative policy analysis, announced his opposition to the amendment citing exactly these federalist grounds:
The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it….
The rising demand that every personal preference become a constitutional right is a worrisome disease. People, of course, do have rights; the Constitution and the first ten amendments spell most of them out. That document defines the essential requirements of life and liberty. Adding new invented rights by either a ratified amendment or judicial overreaching is a mistake.
(WSJ, Mar. 18, reprinted at AEI site). More: Jonathan Rauch, Dale Carpenter’s new paper for Cato, Julian Sanchez (& welcome Volokh, Sullivan, Independent Gay Forum readers).
Tagged as:
federalism,
same-sex marriage
In Washington state, voters defeated I-330, a doctor-backed plan to limit medical malpractice awards and lawyers’ fees, by about a 54-46 margin, while also drubbing I-336. a lawyer-backed alternative (Seattle P-I, Seattle Times). California voters trounced, by a 61-39 margin, Proposition 79, which would have regulated drug prices via freelance lawsuits among other means; they defeated Proposition 78, a drug-industry-backed alternative, by nearly as wide a margin. (L.A. Times, Sacramento Bee). In Virginia, former Richmond mayor and Democrat Tim Kaine, who had been criticized by the American Justice Partnership (Nov. 2), won the governorship anyway (Wash. Post). Texas voters easily passed an anti-gay-marriage constitutional amendment that Houston attorney Warren Cole, chairman of the State Bar of Texas’ family law section, called “horribly drafted” and which would prohibit the recognition of any “legal status” that is “similar to marriage” (more from Cathy Young)(see yesterday’s post) (Dallas Morning News) (cross-posted at Point of Law).
Tagged as:
California,
governors,
politics,
same-sex marriage,
Texas,
Virginia,
Washington state
