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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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THIS IS NOT OK

Trump’s DC Military Operation: Up to 2100 Soldiers in Riot Gear Armed With Bayonets for Operation ‘Divine Law and Order’

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President Donald Trump hasn’t stormed U.S. cities across the country yet but as Washington. D.C. is not a state, and therefore has no governor, he can pretty much do as he pleases.

That includes a military operation on the streets of the nation’s capital, called “Operation Themis.”

“In Greek mythology,” the Associated Press reports, “Themis was a titaness of divine law and order, whose symbols are the scales of justice.”

Trump, who fancies himself a “wartime President,” as he has claimed, on Monday told America, “I am the law and order President.”

Up to 2100 U.S. military troops in riot gear will be mobilized to maintain that “divine law and order.” They will be armed, and have bayonets as well.

Related – Local DC Reporter: ‘Major Movement of Military Hardware and Personnel’ Into Downtown Washington

For Monday’s operation, “President Donald Trump ordered military aircraft to fly above the nation’s capital,” the AP reveals, “as a ‘show of force’ against demonstrators protesting the death of George Floyd, according to two Department of Defense officials.”

Helicopters buzzed the ground, reportedly flying less than the minimum required 1000 feet above the ground, to “intimidate” protestors.

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WHOA

‘End Systemic Racism’: Bush 43 Delivers Rare, Silent Rebuke to Trump – Calls for Law Enforcement to ‘Protect’ Protestors

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Republican former President George W. Bush has been almost entirely silent during the tenures of both his successors, but on Tuesday the 43rd President of the United States issued a stunningly strong statement in support of the hundreds of thousands if not millions of Americans protesting the police killing of George Floyd.

It is a remarkable moment, given that former presidents almost never criticize those who follow them, especially when they are members of the same party.

And while never mentioning the current President’s name, Bush’s intentions are quite clear – and his words are quite clearly a silent rebuke to President Trump.

President Bush said he and the First Lady “are anguished by the brutal suffocation of George Floyd and disturbed by the injustice and fear that suffocate our country.”

He called this a “time for America to examine our tragic failures – and as we do, we will also see some of our redeeming strengths,” and wrote that it “remains a shocking failure that many African Americans, especially young African American men, are harassed and threatened in their own country.”

“It is a strength when protesters, protected by responsible law enforcement, march for a better future. This tragedy — in a long series of similar tragedies — raises a long overdue question: How do we end systemic racism in our society?”

Read the Bush’s full statement, via CNN:

“Laura and I are anguished by the brutal suffocation of George Floyd and disturbed by the injustice and fear that suffocate our country. Yet we have resisted the urge to speak out, because this is not the time for us to lecture. It is time for us to listen. It is time for America to examine our tragic failures – and as we do, we will also see some of our redeeming strengths.
It remains a shocking failure that many African Americans, especially young African American men, are harassed and threatened in their own country. It is a strength when protesters, protected by responsible law enforcement, march for a better future. This tragedy — in a long series of similar tragedies — raises a long overdue question: How do we end systemic racism in our society? The only way to see ourselves in a true light is to listen to the voices of so many who are hurting and grieving. Those who set out to silence those voices do not understand the meaning of America — or how it becomes a better place.
America’s greatest challenge has long been to unite people of very different backgrounds into a single nation of justice and opportunity. The doctrine and habits of racial superiority, which once nearly split our country, still threaten our Union. The answers to American problems are found by living up to American ideals — to the fundamental truth that all human beings are created equal and endowed by God with certain rights. We have often underestimated how radical that quest really is, and how our cherished principles challenge systems of intended or assumed injustice. The heroes of America — from Frederick Douglass, to Harriet Tubman, to Abraham Lincoln, to Martin Luther King, Jr. — are heroes of unity. Their calling has never been for the fainthearted. They often revealed the nation’s disturbing bigotry and exploitation — stains on our character sometimes difficult for the American majority to examine. We can only see the reality of America’s need by seeing it through the eyes of the threatened, oppressed, and disenfranchised.
That is exactly where we now stand. Many doubt the justice of our country, and with good reason. Black people see the repeated violation of their rights without an urgent and adequate response from American institutions. We know that lasting justice will only come by peaceful means. Looting is not liberation, and destruction is not progress. But we also know that lasting peace in our communities requires truly equal justice. The rule of law ultimately depends on the fairness and legitimacy of the legal system. And achieving justice for all is the duty of all.
This will require a consistent, courageous, and creative effort. We serve our neighbors best when we try to understand their experience. We love our neighbors as ourselves when we treat them as equals, in both protection and compassion. There is a better way — the way of empathy, and shared commitment, and bold action, and a peace rooted in justice. I am confident that together, Americans will choose the better way.”

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RULE OF LAW?

Local DC Reporter: ‘Major Movement of Military Hardware and Personnel’ Into Downtown Washington

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A local Washington, D.C. reporter posted video of a huge military vehicle emblazoned with the word “flammable” on its side, which he says is driving on the streets of the nation’s capital. This comes just one day after President Donald Trump told the nation’s governors to “dominate” the streets and increase the presence of the National Guard and other law enforcement agencies.

“Seeing a major movement of military hardware and personnel on the streets of downtown DC today as #GeorgeFloyd protests continue,” Tom Fitzgerald of Fox affiliate Fox5 reported via Twitter.

Fitzgerald says the military vehicles now have “a much wider footprint” than yesterday.

Several social media users u=identified the truck as a tanker used to carry airplane/aviation fuel.

Washington, D.C. Mayor Muriel Bowser is opposed to the militarization of her city.

Trump has far more control over Washington, D.C. than the states because it has no governor.

 

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