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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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Trump’s Fate Could Still Hang on Possible Sentencing in NY Election Interference Case

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New York Supreme Court Judge Juan Merchan is expected to hand down a decision on Tuesday that could ultimately put the president-elect of the United States in jail. Donald Trump, who has yet to be sentenced for his 34-count criminal felony conviction in his New York election subversion case, commonly known as his “hush money” case, will learn if the judge will sentence him or set aside the verdict now that he has been elected President.

“Back on September 6th, Judge Juan Merchan (in Trump’s NY election interference case) ruled that he would issue a decision by tomorrow, November 12th, on Trump’s Motion to Set Aside the jury’s verdict and to Dismiss the indictment, based on SCOTUS’ immunity ruling,” MSNBC legal contributor and commentator Katie Phang reported Monday afternoon.

Judge Merchan on Sept. 6 had written that Trump was attempting “to bolster his application [for adjournment, or dismissal] by repeating a litany of perceived and unsubstantiated grievances from previous filings that do not merit this Court’s attention and will not be addressed in this Decision.”

On September 6, former federal prosecutor Ankush Khardori wrote at Politico: “As a strictly legal matter, there was no good reason to delay Trump’s sentencing.”

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“The public’s confidence in the integrity of our judicial system demands a sentencing hearing that is entirely focused on the verdict of the jury and the weighing of aggravating and mitigating factors free from distraction or distortion. The members of this jury served diligently on this case, and their verdict must be respected and addressed in a manner that is not diluted by the enormity of the upcoming presidential election,” Merchan wrote Sept. 6. “Likewise, if one is necessary, thc Defendant has the right to a sentencing hearing that respects and protects his constitutional rights.”

Trump is currently slated to be sentenced on November 26.

Reuters reports it is now “unlikely,” according to legal experts, that Trump will face any jail time.

“Trump faces a sentence of up to four years in prison after being convicted of 34 felony counts. Legal experts have said that while lesser penalties such as fines or probation are more likely, a prison sentence would not be impossible.”

Last week in a guest commentary piece for the Kansas City Star, that paper’s former editor, Bill Dalton, wrote:

“On Nov. 5, the American people did the unthinkable — they elected a convicted felon president. Judge Juan Merchan should now do what was once unthinkable — force a president-elect to take the oath of office in a jail cell.”

Watch Reuters’ report below or at this link.

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‘What Illegal Corruption Looks Like’: Trump Blasted for ‘Already Breaking the Law’

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U.S. Senator Elizabeth Warren is criticizing President-elect Donald Trump, asserting he is violating a mandatory ethics law regarding presidential transitions and conflicts of interest—provisions which she says she wrote—and that refusal could have impacts on national security preparedness. Trump signed updates to this law during his first term in office.

“Donald Trump and his transition team are already breaking the law,” Senator Warren wrote. “I would know because I wrote the law. Incoming presidents are required to prevent conflicts of interest and sign an ethics agreement. This is what illegal corruption looks like.”

The Massachusetts Democrat pointed to a CNN report that reveals Trump “has not yet submitted a series of transition agreements with the Biden administration, in part because of concerns over the mandatory ethics pledge vowing to avoid conflicts of interest once sworn in to office.”

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“Both Trump’s and his family’s foreign business ties have also come under intense scrutiny throughout his time in office and on the campaign trail,” the report notes. “Trump and his transition team are already behind in accessing key transition briefings from the Biden administration, as they have failed to sign a pair of agreements to unlock critical information before taking over the federal government in 72 days.”

CREW, the federal government watchdog, in a report updated just after Trump left office 2021, reported he had “promised a firewall between his business and his presidency, but he broke that promise and accumulated 3,403 conflicts of interest so far. The conflicts include visits to Trump properties by foreign government officials, taxpayer spending at Trump businesses, and Trump’s own blatant promotions of the businesses. CREW has tracked around two conflicts of interest per day, but that is likely only the tip of the iceberg.”

“Experts are sounding the alarms about impacts to Day 1 national security preparedness,” CNN also reports.

The New York Times notes that the Trump transition team “has missed multiple deadlines for signing required agreements governing the process. That has prevented Mr. Trump’s transition team from participating in national security briefings or gaining access to federal agencies to begin the complicated work of preparing to take control of the government on Jan. 20, 2025.”

Separately, one researcher pointed to a report on the 9/11 terror attacks.

“The 9/11 Commission found that the delayed transition affected national security for months after the inauguration, which may have contributed to 9/11,” according to E. Rosalie Li, who writes about public health, national security, and public policy. “On the day of the attacks, only 57% of the top 123 Senate-confirmed positions were filled at the Pentagon, the Justice Department, and the State Department combined, excluding ambassadors, U.S. marshals, and attorneys.”

Richard Painter, the well-known professor of law and former chief White House ethics lawyer summed it up: “Here we go again. Vintage 2016. Come on @realDonaldTrump, let’s sign the ethics agreement and get on with it.”

Max Stier, the president and CEO of the Partnership for Puboci Service outlined some of the agreements the Trump transition is late in signing, if they sign them at all.

Watch the video below or at this link.

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‘Tenfold Increase in Number of Deportations’: Trump Hands Stephen Miller Top Policy Post

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Stephen Miller, the architect of Donald Trump’s child and family separation policy and one of his longest-serving, die-hard loyalists, will become the incoming president’s deputy chief of staff for policy, a top role in the second administration of the Republican nationalist.

Miller, an immigration hardliner who was also responsible for Trump’s Muslim-majority country travel ban, has a history of promoting white nationalist rhetoric. He is responsible for the separation of thousands of young children from their parents, and even from their siblings, as a means to deter other asylum seekers from crossing the southern border into the United States. Under Trump and Miller’s “zero tolerance” policy, there were no plans to reunite the children with their parents.

Despite efforts by the Biden administration, thousands of children have never been placed back into their families. As of May, 1400 children remained separated from their parents.

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“Miller will return with more influence than he had in the first Trump administration, where he served as a senior adviser for policy, two sources familiar with the matter told CNN,” The Daily Beast adds, noting that Miller was also behind Trump’s “American carnage” inauguration address.

CNN reports that “Miller is also a lead architect of the president-elect’s plans for mass deportations of undocumented immigrants. He has said that a second Trump administration would seek a tenfold increase in the number of deportations to more than 1 million per year. In an interview on Fox News last week, Miller expressed eagerness at the prospect of beginning mass deportations as soon as possible.”

“They begin on Inauguration Day, as soon as he takes the oath of office,” Miller said.

“Confirming the appointment, Vice President-elect JD Vance posted a message of congratulations on Monday to Miller on X and said, ‘This is another fantastic pick by the president.’ The announcement was first reported by CNN,” The Associated Press reports.

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In 2019, The Guardian called Miller “the white nationalist at the heart of Trump’s White House,” amid an “extraordinary email leak” that revealed Miller had “promoted white nationalist articles and books in emails to a writer at Breitbart, who after leaving the hard-right website leaked 900 messages to the Southern Poverty Law Center (SPLC).”

Miller also wrote at least part of Trump’s infamous January 6, 2021 speech at the Ellipse, during which he said, “…and we’re going to walk to the Capitol…”

CNN, in a minute-by-minute analysis of the insurrection,  reported that at 9:52 AM, “Trump talks to senior adviser and lead speechwriter Stephen Miller for 26 minutes, according to White House records that were obtained by the committee and released at a public hearing. After Trump’s conversation with Miller, Trump adjusts a draft of his upcoming speech to add more lines about Pence and the joint session of Congress, according to the committee, which reviewed the drafts.”

In February of 2017, just weeks into Trump’s first term, Miller told reporters, “our opponents, the media, and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial, and will not be questioned.”

Watch the video bel0w or at this link.

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