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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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News

‘Taking Us All for Fools’: Critics Decimate Greg Abbott’s Claims and Defense of His Actions in Wake of School Shooting

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Texas Republican Governor Greg Abbott in a press conference that left reporters frustrated defended his actions and insisted his earlier praise for law enforcement’s widely criticized response to the Uvalde school massacre was the result of being “misled.”

“I am livid about what happened,” Abbott declared, blaming others for his “recitation of what people in that room told me.”

Critics aren’t buying his claims.

Abbott, who’s in the middle of a heated re-election campaign, appeared extremely defensive when reporters asked him questions.

“Let’s be clear about one thing. None of the laws I signed this past session had any intersection with this crime at all,” Abbott told reporters when asked if he would call the legislature back for a special session, as The Texas Tribune’s Sewell Chan noted.

“No law that I signed allowed him to get a gun,” Abbott insisted.

“The answers fell pretty flat,” opined MSNBC’s Nicolle Wallace, who noted the press event lasted just 36 minutes, less time than the police officers “stood outside and did nothing,” which was 47 minutes.

Abbott ended the press conference with many reporters almost begging him to take more questions. As the governor got up and left one frustrated reporter was caught on a hot mic saying “unbelievable.”

Chan, who is the editor in chief of the Tribune, added on Twitter: “Abbott rejects background checks as a simplistic and ineffective fix. Wouldn’t have prevented Sutherland Springs and Santa Fe shootings, he says. Tries to turn focus to broken mental health system.”

Former FBI assistant director for counterintelligence Frank Figliuzzi on MSNBC delivered a strong rebuke to Governor Abbott’s remarks.

“No amount of free flights, no amount of free caskets, no amount of mental health counseling is going to bring back any one of those murdered children,” Figliuzzi said, referring to Abbott’s announcement an anonymous donor is putting up  $175,000 for funeral expenses of those who were murdered in the shooting and said the state will pay for mental health treatment.

Abbott also insisted that since Texas became a state it’s been legal for 18-year-olds to buy long guns.

Fred Guttenberg, whose daughter Jaime was murdered in the Parkland school shooting, blasted Abbott:

And long guns of today, as Figliuzzi noted, are often semi-automatic “killing machines.”

“The governor seems completely unable to understand that he can easily make a distinction when you’re talking about whether an 18-year-old should buy an assault rifle or not. And all he cares about is a century of history in Texas on long guns. We didn’t have the AR-15 style assault weapons back then.  He can easily make a distinction and say, ‘you can go hunting, here are the rifles you can do, you can buy, you can possess – and here’s an assault-style rifle.'”

“If he thinks that people are stupid and unable to understand that there is a clear distinction between a killing machine and a hunting rifle, that he’s taking us all for fools.”

 

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‘I Apologize for Interrupting Your Press Conference’: Tearful Texas Democrat Urges Greg Abbott to ‘Do Something’ on Guns

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The Texas Democratic State Senator who represents Uvalde stood up during Greg Abbott’s Friday afternoon press conference and almost begged the Republican Governor to “do something” about gun violence after Tuesday’s massacre at Robb Elementary School that took 21 lives.

Abbott was trying to place the blame for the school shooting on mental health despite the gunman having no documented issues, and told attendees, “we’re focusing our attention on the wrong thing.”

That was not good enough for Democratic State Senator Roland Gutierrez, who politely introduced himself and said, “I’m not making a political speech.”

“My colleagues are asking for a special session, you’re getting a letter tomorrow,” from the Senate Democratic Caucus.

“We’ve asked for gun control changes – I’m asking you now, bring us back in three weeks.”

Gutierrez grew emotional, sounding as if he was choking up, and added, “I apologize for interrupting your press conference about the needs of this community. I’ve been here for three days with all of these elected officials – this county judge has been working his ass off,” he continued.

“I don’t know how to express the loss of the families that I’ve talked to,” he added.

“You have to do something, man,” Gutierrez said, all but begging the governor to take action, and saying his “own colleagues are calling me and telling me this is enough.”

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RIGHT WING EXTREMISM

Watch: Right Wing Host at NRA Convention Likens 18 Year Olds Buying Guns to 3rd Graders Deciding Gender

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A host from a right-wing streaming service covering the NRA convention in Houston decided to compare conservatives’ growing active opposition to the rights and existence of transgender people, to the majority of Americans demanding expanded gun control legislation.

“We are being told by the left that a third-grader has the knowledge to determine if they were born a boy or they were born a girl, whether or not they want to stay that gender that they were born with,” said Brian Glenn, Right Side Broadcasting’s director of programming and correspondent.

“And if we feel like at a third grade you can make decisions on your gender, then I think by the time you’re 18 you should have enough maturity – assuming you’re not a complete psychopath – to buy a handgun and exercise your Second Amendment.”

Of course, that hypothetical third-grader is harming exactly no one and later can reverse that decision if they choose, which the vast majority do not.

That hypothetical 18-year old, or, in the case of this week’s horrific tragedy, an actual 18-year old, buying two AR-15 style assault weapons and hundreds of rounds of ammunition within three days of their 18th birthday, gunning down 21 people including 19 elementary school children, cannot reverse any of those decisions.

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