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Previewing Prop 8 And DOMA: Part I — The Amicus Briefs

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As you almost surely know, the Supreme Court will shortly hear oral arguments on two cases of monumental importance to the LGBT rights movement: Windsor v. United States (the Defense of Marriage Act case) and Hollingsworth v. Perry (the Proposition 8 case, which has undergone more name changes than Prince). By the conclusion of oral arguments on March 27, we might have a pretty good idea of which way the Justices are leaning on these cases. A decision is expected by late June. As we approach that date, I’ll be writing a series of columns explaining the legal issues from several different perspectives. (You can let me know in the comments if there’s any particular question you’d like to see explored or answered.)

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Let’s start with an issue that might not occur to you right away: amicus briefs.  The two cases have spawned an almost unfathomable number of these amicus briefs – I counted at least 80 such briefs in the Prop 8 case, and more than 40 for DOMA (with more coming in….). My guess is that this is some kind of all-time record. So, what is an amicus brief? And do they matter?

The full name of these documents is amicus curiae, Latin for “friend of the court.” They are written to provide the court with a perspective that might otherwise be missing. In the case of marriage equality, amici (the plural of “amicus,” for you non-Latin scholars) have supplied an avalanche of such perspectives: in addition to additional legal lenses not fully developed by the parties, these include (at least) sociology; biology; philosophy; politics; religion; public health; and psychology. Of course, for each of these perspectives there are, in turn, oodles (a technical term) of viewpoints, and the amicus writers seem to have expressed almost all of them. The American Bar Association has collected them all here and here.

It’s not surprising that these cases have generated so many thoughtful responses from different communities. Marriage equality is a hugely important issue all by itself, of course, but the debate also feeds into broader questions about the state of marriage more generally, and from there into still wider issues about the kind of society we want to have and to encourage.

Let’s look at three concrete examples, for context. A brief by the American Psychological Association, the American Medical Association, and other reputable professional organizations argues for marriage equality based on the accumulating pile of evidence showing that: same-sex attractions are normal expressions of human sexuality; same-sex couples form the attachments and commitments at the same depth as our heterosexual counterparts,; and kids thrive in families headed up by same-sex couples. On the other side is a brief by Princeton Professor Robert George and colleagues, which argues that extending marriage to same-sex couples will destabilize both the definition of marriage and the institution itself. The brief is a kind of hodgepodge of neo-natural law, bad social science, and raw speculation about negative long-term consequence if the same-sex marriage beast is released from its shackles.

And then there’s one of my favorites, by Dr. Maria Nieto, who is a biologist in the Cal State system. She points out that our commitment to the “two-sex only” model that supports the exclusion of same-sex couples from marriage isn’t consistent with the complex biological reality that “a not insignificant” percentage of the population expresses sex and gender in ways that don’t fit into this binary system; mostly, she’s talking about intersexed people, who may have physical and hormonal characteristics that place them somewhere between the male-female poles.

Well, this is all very interesting. (I mean, it really is! Read some of them if you have some time. You’ll learn lessons that extend far beyond the current controversy.) But, again, do any of these briefs matter?

There’s some reason to think they have mattered, in some cases. The Court considered them in some of the criminal procedure cases, for example. And occasionally such briefs are cited by the Supreme Court or by lower federal courts, a sign that they might have had at least some influence on the decision. To speak (ahem) about my own involvement for a moment: The federal court of appeals in Windsor cited an amicus brief by Family Law professors (including me!) in which we pointed out that DOMA is the first time that Congress butted in to the state law issue of who’s married, and who isn’t, by defining marriage as limited to the union of a man and a woman. (As you probably know, DOMA means that even if you’re married under your state’s law, your union doesn’t count for federal purposes.) Update: I just found this statement from former Justice O’Connor, taken from last night’s appearance on The Rachel Maddow Show (and thanks to David Badash for alerting me to this):

If [an amicus brief] gives you an intelligent look at the legal  issues, then it might be of some value to you, as a Justice.

And she said she read them! Whether they’ll affect the Justices’ thinking in these cases is anyone’s guess, though. If it’s true that it’s all up to Justice Kennedy, then perhaps he’s sitting up nights, briefs stacked on a table next to his chair, reading through the thick pile of verbiage in an attempt to gain wisdom about what to do. Let’s hope so, as the arguments for striking down these laws are much stronger than those on the other side. Reading the 120+ amicus briefs (not to mention those filed by the actual parties to the case) would doubtless only strengthen that conviction.

John Culhane is the co-author of the new book,  Same-Sex Legal Kit for Dummies. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law, and is also a contributing writer for Slate.

 

 

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BREAKING NEWS

Watch: Santos Responds to Report He Joked About Hitler, ‘The Jews’ and Black People

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U.S. Rep. George Santos (R-NY) allegedly made a social media post appearing to praise Adolf Hitler while referring to “the Jews and Black” people, and frequently made pejorative “jokes” about being Jewish according to friends interviewed by Patch and screenshots of now-deleted social media posts.

In 2011, Santos “commented on a Facebook post with what appear to be intended-jokes about Hitler, a phrase that appears to salute Hitler and observations about ‘the Jews and black[s],’ exclusive screenshots obtained by Patch show.”

Patch, which published a screenshot of  what appear to be Santos’ comment, reports he had written this: “hiiiiiiiiiiiiiiiiiiiigh hiiiiiiiiiiiitlerrrrrrrrrrr (hight hitler) lolololololololololololol sombody kill her!! the jews and black [sic] mostly lolllolol!!! Dum”

Sarah Fishkind, whose LinkedIn profile describes her as a political organizer, posted video Thursday afternoon of her conversation with Rep. Santos.

“Do you have any comments about your most-recently-leaked Facebook comments about killing all Jews and Black people?” she asked, according to her post.

“I’m sorry?” Santos, appearing to be stunned, replied.

READ MORE: ‘Big No-No’: Santos May or May Not Have a Campaign Treasurer Prompting Questions About Whose Signature That Is

“It’s on the news right. now,” she responded, “that you Facebook commented.”

Santos replied with a frustrated huff, then said: “That’s going to be hard to hold.” It’s unclear what he meant by that comment.

Santos ran and won his congressional seat claiming to be a gay Jewish Republican, only later to falsely claim he never said he was Jewish, but “Jew-ish.” He also lied about his grandparents fleeing the Holocaust.

Jewish groups have condemned his false claims of Jewish heritage, which include false claims that his grandparents were “Holocaust refugees.”

Watch the videos above or at this link.

This is a breaking news and developing story. Details may change. 

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RIGHT WING EXTREMISM

‘Moral Turpitude’: Trump Coup Memo Author John Eastman Now Facing 11 Counts of Alleged Ethics Violations – and Disbarment

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John Eastman, the far-right attorney, disgraced former law professor, former clerk to Supreme Court Justice Clarence Thomas, and current chairman of the anti-LGBTQ National Organization For Marriage (NOM) is facing eleven counts of alleged ethics violations, and disbarment, by California state bar regulators. Among the allegations, “intentional acts of moral turpitude, dishonesty, or corruption.”

As The New York Times reported last fall, “after the November election, Mr. Eastman wrote the memo for which he is now best known, laying out steps that Vice President Mike Pence could take to keep Mr. Trump in power — measures Democrats and anti-Trump Republicans have likened to a blueprint for a coup.

So has the U.S. House Select Committee on the January 6 Attack, which late last month referred Eastman – in the same breath as Donald Trump – to the Dept. of Justice for possible prosecution on criminal charges, including obstruction of an official proceeding and conspiracy to defraud the United States.

On Thursday, Bloomberg News reported California state bar regulators “say they will seek to strip” Eastman of his law license.

READ MORE: Ginni Thomas Looking Like ‘Full Fledged Potential Co-Conspirator’ After Discovery of Emails With Eastman: Legal Expert

“The Notice of Disciplinary Charges alleges that Mr. Eastman violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land — an egregious and unprecedented attack on our democracy — for which he must be held accountable,” the State Bar of California’s Chief Trial Counsel George Cardona said in a statement. “Eastman has not been charged with any crimes to date.”

“The 11 charges arise from allegations that Eastman engaged in a course of conduct to plan, promote, and assist then-President Trump in executing a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020 presidential election by obstructing the count of electoral votes of certain states,” the State Bar of California’s statement adds.

Law & Crime’s Adam Klasfeld further explains that Cardona “intends to seek Eastman’s disbarment for alleged violations of Business and Professions Code section 6106, which punishes making false and misleading statements that constitute acts of ‘moral turpitude, dishonesty, and corruption.'”

Last week The New York Times described Eastman as “a chief architect of Donald Trump’s effort to reverse his election loss,” but it is his fellow Republican attorneys who delivered the judgment on his skills.

“Many White House lawyers expressed contempt for Mr. Eastman, portraying him as an academic with little grasp of the real world,” The Times reported. “Greg Jacob, the legal counsel to former Vice President Mike Pence, characterized Mr. Eastman’s legal advice as ‘gravely, gravely irresponsible,’ calling him the ‘serpent in the ear’ of Mr. Trump. Eric Herschmann, a Trump White House lawyer, recounted ‘chewing out’ Mr. Eastman. Pat A. Cipollone, the chief White House counsel, is described calling Mr. Eastman’s ideas ‘nutty.'”

READ MORE: Bombshell NYT Report Reveals Bill Barr’s Special Counsel Opened ‘Secret’ Financial Crimes Probe Into Trump But Never Prosecuted

It wasn’t just Republican attorneys in the Trump White House.

During the January 6 insurrection, Eastman, certainly no silent architect, stood at the same podium Donald Trump would speak at, and delivered a fiery speech alongside Rudy Giuliani. Six days later his colleagues at Chapman University demanded his firing.

The disbarment may be the least of Eastman’s self-inflicted woes.

“He has been drawn into the criminal investigation into election interference in Atlanta, which is nearing a decision on potential indictments,” according to The Times, also adding that the “F.B.I. seized his iPhone.”

READ MORE: ‘Big No-No’: Santos May or May Not Have a Campaign Treasurer Prompting Questions About Whose Signature That Is

Watch the videos above or at this link.

This article was updated at 5:41 PM ET with details reported by Law & Crime, including references to “moral turpitude.”

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RIGHT WING EXTREMISM

Bombshell NYT Report Reveals Bill Barr’s Special Counsel Opened ‘Secret’ Financial Crimes Probe Into Trump But Never Prosecuted

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Special Counsel Robert Durham, appointed by then-Attorney General Bill Barr, uncovered possible financial crimes by Donald Trump but made no attempt to prosecute them, The New York Times reveals in massive, bombshell report published Thursday after a months-long investigation.

“Mr. Barr and Mr. Durham never disclosed that their inquiry expanded in the fall of 2019, based on a tip from Italian officials, to include a criminal investigation into suspicious financial dealings related to Mr. Trump. The specifics of the tip and how they handled the investigation remain unclear, but Mr. Durham brought no charges over it,” The Times’ Charlie Savage, Adam Goldman, and Katie Benner report.

The “potentially explosive tip linking Mr. Trump to certain suspected financial crimes” came during a trip Barr and Durham, his special counsel, took together. They “decided that the tip was too serious and credible to ignore.”

But, “Mr. Durham never filed charges, and it remains unclear what level of an investigation it was, what steps he took, what he learned and whether anyone at the White House ever found out. The extraordinary fact that Mr. Durham opened a criminal investigation that included scrutinizing Mr. Trump has remained secret.”

That’s just one aspect of The Times’ extensive and disturbing report.

It also reveals that there was little justification for Barr to install Durham as a special counsel to investigate what Trump wrongly maintained was an unjustifiable investigation into his ties to Russia.

In fact, The Times “found that the main thrust of the Durham inquiry was marked by some of the very same flaws — including a strained justification for opening it and its role in fueling partisan conspiracy theories that would never be charged in court — that Trump allies claim characterized the Russia investigation.”

READ MORE: ‘Failed Spectacularly’: Top Legal Experts Call for Ethics Probe Into Bill Barr’s Handpicked Special Counsel John Durham

In another shocking revelation, The Times reports Durham “used Russian intelligence memos — suspected by other U.S. officials of containing disinformation — to gain access to emails of an aide to George Soros, the financier and philanthropist who is a favorite target of the American right and Russian state media.”

The Times does not explain how Durham obtained the Russian disinformation.

“Mr. Durham used grand jury powers to keep pursuing the emails even after a judge twice rejected his request for access to them. The emails yielded no evidence that Mr. Durham has cited in any case he pursued.”

Attorneys on Durham’s team apparently had significant qualms with his actions, leading at least two to resign.

“There were deeper internal fractures on the Durham team than previously known,” The Times reports. “The publicly unexplained resignation in 2020 of his No. 2 and longtime aide, Nora R. Dannehy, was the culmination of a series of disputes between them over prosecutorial ethics. A year later, two more prosecutors strongly objected to plans to indict a lawyer with ties to Hillary Clinton’s 2016 campaign based on evidence they warned was too flimsy, and one left the team in protest of Mr. Durham’s decision to proceed anyway. (A jury swiftly acquitted the lawyer.)”

BARR THREATENED NSA

The Times also reports that Attorney General Barr bought into Trump’s false claims that there had been “no collusion” between the Trump camp and Russia.

READ MORE: Republicans Claiming ‘Censorship’ Threaten to Haul AT&T and DirecTV Into Congress for Dropping Far-Right Newsmax

Importantly, The Times states point-blank that the Mueller Report “detailed ‘numerous links between the Russian government and the Trump campaign,’ and it established both how Moscow had worked to help Mr. Trump win and how his campaign had expected to benefit from the foreign interference.”

According to The Times’ account, “soon after giving Mr. Durham his assignment,” in May of 2019, “Mr. Barr summoned the head of the National Security Agency, Paul M. Nakasone, to his office. In front of several aides, Mr. Barr demanded that the N.S.A. cooperate with the Durham inquiry.”

The NSA is a wholly separate entity from the Dept. of Justice. It is an agency under the Dept. of Defense and reports to the powerful Director of National Intelligence (DNI).

Barr apparently did not care, and, “repeating a sexual vulgarity, he warned that if the N.S.A. wronged him by not doing all it could to help Mr. Durham, Mr. Barr would do the same to the agency.”

DURHAM TRIED TO SCUTTLE A REPORT’S FINDING THAT TRUMP-RUSSIA INVESTIGATION WAS WARRANTED

“Mr. Durham’s team spent long hours combing the C.I.A.’s files but found no way to support the allegation” that the investigation into Trump and Russia was the result of some anti-Trump deep state operation.

Barr and Durham actually “traveled abroad together to press British and Italian officials to reveal everything their agencies had gleaned about the Trump campaign and relayed to the United States, but both allied governments denied they had done any such thing. Top British intelligence officials expressed indignation to their U.S. counterparts about the accusation, three former U.S. officials said.”

The Dept. of Justice’s Inspector General’s investigation found there was, in fact, sufficient cause for the DOJ to have opened up the Trump-Russia investigation, contrary to Barr’s personal beliefs.

So he tried to have that finding removed from the final report.

READ MORE: ‘Big No-No’: Santos May or May Not Have a Campaign Treasurer Prompting Questions About Whose Signature That Is

The Times reports that “the broader findings contradicted Mr. Trump’s accusations and the rationale for Mr. Durham’s inquiry,” which should have shut down what ultimately became Durham’s four-year long investigation that netted almost nothing.

The DOJ Inspector General, Michael Horowitz, “found no evidence that F.B.I. actions were politically motivated. And he concluded that the investigation’s basis — an Australian diplomat’s tip that a Trump campaign adviser had seemed to disclose advance knowledge that Russia would release hacked Democratic emails — had been sufficient to lawfully open it.”

So Barr tried to discredit Horowitz’s report.

“Minutes before the inspector general’s report went online, Mr. Barr issued a statement contradicting Mr. Horowitz’s major finding, declaring that the F.B.I. opened the investigation “on the thinnest of suspicions that, in my view, were insufficient.” He would later tell Fox News that the investigation began “without any basis,” as if the diplomat’s tip never happened.”

Read the entire Times report here.

 

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