Federal Marriage

The New York Times had a nice editorial praising Governor Spitzer for introducing a bill to legalize same-sex marriage in New York.

But, one portion of the editorial is misleading:

One federal study identified more than 1,100 rights or benefits that are accorded only to the legally married. That means that even in states recognizing civil unions and domestic partnerships, gay couples often have to use legal contortions to protect their families in ways that married couples take for granted.

Actually, even in states recognizing gay marriage, and Massachusetts is currently the only one, gay couples who are married at the state level will not have access to the 1,100 rights or benefits accorded to married couples at the federal level. The Defense of Marriage Act (“DOMA”) denies federal recognition of gay marriages and gives each state the right to refuse recognition of same-sex marriage licenses issued by other states. For a full discussion of the rights and benefits of marriage recognized by the federal government, check out the Government Accountability Office’s 2004 report detailing federal provisions in which rights, privileges, and benefits are contingent upon marital status, or in which marital status is a factor.

A while back I heard that a same-sex couple, married in Massachusetts, filed a lawsuit because they were not sure whether they could list their status as “married” on their federal tax returns. (Couldn’t find a record of the lawsuit to link to.) You see, when you sign your federal tax return, you swear that the information contained therein is true and correct. But, same-sex married couples in Massachusetts have to list their status as “married” on their state forms, but “single” on their federal forms. They wanted to make sure that they wouldn't be penalized for listing one status on the federal form, and another on the state form.

Leaving aside my personal sexual orientation, not allowing gays and lesbians to marry is ridiculous. Pragmatically, creating this legal limbo for gays and lesbians simply leads to more work and confusion for the courts, the individuals involved, and the employers, insurers, doctors, etc. when making decisions in which marital status is relevant. It would make so much more sense to open marriage to same-sex couples.

Grief and Sacrifice

On Monday night, PBS aired two extraordinary programs called “Warriors” and “Operation Homecoming”detailing the experiences of U.S. soldiers who are fighting in Iraq and experiences of those from past wars. During the program, one Vietnam veteran said, "That's the sign of a decadent civilization. To send young people to go and do and suffer the things that soldiers do and suffer and to not care or be aware or pay a price. That's an unforgivable decadence.”

He’s right, we are a decadent country. Most Americans go through their day with little reminder that people wearing our uniforms are fighting and dying, killing and being killed. We are irritated when the cable goes out, or the barista is slow making our latte. But, when soldiers die or Iraqi civilians are killed, the event merits little more than a brief mention on the news. We cluck and shake our heads, then settle in for "American Idol."

In every major American war before this one, American civilians were aware of the price and sacrifice of war. From the draft to war bonds to rationing, American civilians’ daily lives were touched by the war. Now, a small number of volunteers are fighting this war on money borrowed from China, and Americans are fatter than we’ve ever been before.

The killings at Virginia Tech were terrible, and anguish, anger, and grief are properly placed. However, it is notable that there is little public or shared sense of grief and anguish over the 3,334 service members killed in Iraq. That figure is more than the total people who were killed in the attacks of 9/11, and 100 times the number of those killed at Virginia Tech. The number of service members who have been wounded in Iraq is 24,645. There is no agreed-upon number for the Iraqis who have been killed in this war. Estimates range from 100,000 to 600,000. And, just this week, approximately 200 people were killed in bombings in Baghdad.

But, as a country, we don’t seem to care all that much about the carnage in Iraq. Candlelight vigils to mourn fallen soldiers or dead Iraqis are few and far between. Flags are not dropped to half-staff in their honor. And, when there is massive carnage such that Baghdad experienced this week, coverage is meager and perfunctory.

Defense Department regulations prohibit us from seeing pictures of the flag-draped soldiers’ coffins, as they are unloaded at Dover Air Force Base on their way to burial. Similar prohibitions forbid coverage of funerals for service members at Arlington National Cemetery. As far as most Americans are concerned, violence in Iraq happens in a vacuum. Most Americans have no real sense of the cruelty and sacrifice and carnage taking place in the country we have invaded. We slap a Support the Troops magnet on the SUV and think we have done our part.

We need to see the coffins being offloaded at Dover AFB. We need to see coverage of service members’ funerals, and mourn their loss. Instead of interviewing the last person voted off of “Survivor,” Matt Lauer should be interviewing the survivors of every service member killed in Iraq. Regardless of each person’s position on the war, it is vital we recognize and try to understand the cost of our war. Only in recognizing the sacrifice and grieving for those lost can we hope to prevent such wars in the future.

Culture of Life?

"We must continue to work for a culture of life where the strong protect the weak and where we recognize in every human life the image of our creator," Bush said at the national Catholic prayer breakfast on April 13th.

Okay. What to make of the following then?

• Detention of individuals without any redress in the courts
• Extraordinary renditions, in which detainees are transported by the U.S. government to the custody of countries which employ torture, in their interrogation methods
• Torture of detainees in Guantanamo and other "secret prisons”

It is easy to call Bush a hypocrite, which he is. But, his transgressions are bigger than hypocrisy. He has created and presided over an administration which demonstrates wholesale disregard and contempt for human life and basic human rights. My point is that he is immoral. He is unethical.

Through his presidency, he has created institutions which degrade the human condition and erode the legal, moral, and ethical constructs of human rights. His actions, and actions of those acting on his behalf, promote and facilitate cruelty. As the head of state, he has dragged the United States into a cesspool of torture and abuse. There are many cogs in the mechanisms which facilitate these violations – they include the President himself, the U.S. personnel who use torture and abuse as interrogation techniques, our elected officials who have authorized or enabled such actions, and every American citizen who has not cried out in protest. We are all complicit. Speculation abounds about what Bush’s “legacy” will be. His legacy will be degradation of the human condition. And, until these actions stop, this legacy will be shared by all Americans.

Free Speech

Lately, it seems that whenever a public figure makes unpopular statements, people cry out that he or she should be fired. Regardless of whether the speaker is engaging in political discourse or bigoted speech, those who disagree want the speaker to be silenced. For instance, Rosie O’Donnell is open about her opposition to the war in Iraq, her belief in the theory that WTC7 could have been felled by a controlled demolition , and mused that the Iran hostage crisis was reminiscent of the Gulf of Tonkin incident, in which the White House lied to Congress by telling them that a U.S. warship was attacked in the Gulf of Tonkin. Based on that information, Congress authorized war powers to engage in the Vietnam War.

Bill O’Reilly caught wind of this discussion, and started spinning her comments to make it seem as if she is accusing the U.S. government of being directly responsible for the 9/11 attacks. He accused her of siding with Iran, and generally made her out to be a traitor. Moral outrage on the part of his minions ensued, and now there are websites and polls addressing whether O’Donnell should be fired.

Last Wednesday, Don Imus called the Rutgers Women’s basketball team “nappy headed hos” on the air. His sidekick later said watching them play University of Tennessee for the championship was like watching “the Jigaboos versus the Wannabes.” After making these comments last Wednesday, black leaders called for him to be fired by MSNBC and CBS Radio. Instead, he was suspended for two weeks, starting on April 16.

It doesn't matter whether we agree or disagree with O'Donnell's views. The ability to engage in political discourse and to communicate differing viewpoints is a cornerstone of democracy. It is troubling that O’Reilly can whip up support for canning O’Donnell based on her political speech. And, the fact that other news channels picked up on O’Reilly’s spin and treated it as actual news is deeply disturbing. Treating O’Reilly’s purported outrage at O’Donnell’s comments as a news story is hardly journalism. If someone disagrees with O’Donnell, it would be far more useful to have a thoughtful, fact-based discussion on the issues. Instead, O’Donnell’s critics call for her to be removed from the air, and for any debate to be quashed.

George Washington addressed the issue of freedom of speech when he was a general, and an anonymous writer was stirring the Continental Army to rebel against Congress. The writer told his audience to be skeptical of anyone who took a moderate stance, in an attempt to quiet those who disagreed with him. In response, Washington said, “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” George Washington, Newburg Address, March 1783. Washington recognized that chilling free and open discourse would destroy our nascent democracy. Then, he left his officers to freely and openly discuss the issue among themselves.

As for Imus, I agree with Washington Post sports reporter Michael Wilbon:

I don't care whether Don Imus apologizes, or whether he's fired. Freedom of speech allows him to say whatever he wants to say. But I've got freedom of speech, as well, and I prefer to have the right to rip his face off in print and on TV for saying, repeatedly, the racially offensive stuff he says over and over and over and over. He compares blacks and Hispanics to apes all the time. ALL THE TIME. It's not rare, it's not an exception. It's not a one-time deal. ALL THE TIME. He and the people in his studio act as if all Blacks are pimps and whores and all have gold teeth and are illiterate...I'm glad I'm guaranteed the right to come right back at a bigot of this level and say whatever I want to say...And I'm happy to go toe-to-toe. Happy to.

Imus’ comments are disgusting, and apparently not out of the norm for him. Such comments do nothing for the public discourse and are part of the schtick which has made him popular. If I were the head of CBS Radio or MSNBC, and he makes similar comments again, I would fire him.

O’Donnell and Imus both made unpopular, but very different, comments, and both commentators have heard calls for their heads on a platter. There is a distinction, though, between O’Donnell’s comments on the Iraq War and WTC7, and Imus’ comments about the basketball team. O’Donnell is engaging in political speech by questioning the actions of the government, while Imus is making racist comments for the amusement of himself and his listeners. By his own admission, he was “trying to be fun.” This is the distinction between political speech and patently offensive bigoted speech. As a nation, we should welcome and value political dissent, especially when we disagree with it. The opportunity to critically review our positions and advocate our stance is a valuable exercise in democracy. But, we should also insist on high standards of public discourse. Imus' comments brought all of us down into the mud and muck of racism, and the public outcry against him is right and good.

Meddling with the USA's at the DOJ

I find the recent U.S. Attorney (USA) scandal to be both troubling and fascinating. The Justice Department (DOJ) fired seven USA’s, citing job performance issues. Folks thought this was strange – usually, when USA’s are fired in a group, it is during a large purge at the start of the president’s term. But here, only seven were fired. Then, it was revealed that another USA had been dismissed to make room for one of Karl Rove’s former lackeys. There is nothing illegal about this dismissal – it just looks kind of ugly.

Indeed, as the White House correctly argues, the USA’s serve at the pleasure of the president. They are political appointees who are confirmed by the Senate. (Or, that is usually the case. A recently noticed provision in the massive Patriot Act allows the president to appoint an interim U.S. Attorney without confirmation for an indefinite term. Formerly, terms of interim USA’s were limited to a finite period of time.)

What makes this interesting is that Deputy Attorney General Paul McNulty seems to have mislead Congress when he told them that the USA’s were fired for performance-related issues. Turns out that they may have been fired for overt political reasons. Kyle Sampson, AG Gonzalez’s former chief of staff, described weeding out USA’s based on whether they were “loyal Bushies” or not. Perhaps more troubling are the allegations that Sen. Pete V. Domenici and Rep. Heather A. Wilson from New Mexico contacted the New Mexico USA, David Iglesias, to inquire about the status of a potential indictment of a Democratic politician. Although the USA's are technically political appointees, once they are in office, they are removed from the political process and political issues are not to be considered in their duties. Former USA Charles Pekor writes that during his tenure as an Assistant USA and interim USA, his office went to great lengths to ensure that there was never a hint of political interference with an ongoing criminal investigation.

The notion that USA’s are pressured to bring charges, or perhaps to drop charges, for political considerations is extremely troubling. New allegations have come to light that the Wisconsin USA brought corruption charges against a state employee. The Wisconsin USA alleged that the employee had improperly awarded a travel contract to a campaign contributor of Wisconsin's Democratic Governor. The governor was fighting off a Republican challenger. She was convicted and jailed; her conviction was material for attack ads by the Republican challenger. She appealed her conviction to the Seventh Circuit, which found the circumstances of her appeal so appalling that she was freed from prison immediately after oral arguments were heard. Although the written opinion of the Seventh Circuit is not yet available, one of the judges called the evidence "extremely thin." This situation raises the concern that other USA's have been the recipients of political pressure to pursue indictments and prosecutions based on political considerations. Our country should be better than this. If the allegations of political interference turn out to be true, it would be extremely damaging to the legal system. Our justice system is not perfect, but meddling in criminal prosecutions for political benefit is unconscionable.

Does the Press Like a War?

I know why we’re fighting a war Iraq – no, it’s not because of WMD, or links to 9/11, or "terror," or for any of the other reasons that those advocating the war suggest. We are fighting a war in Iraq because of a fundamental failure of our democratic system. As anyone who stayed awake in Civics class knows, the framers of our government believed in a system of checks and balances to ensure that the Executive Branch does not run roughshod over the Legislature, that the Legislature does not squash the Judiciary, and so forth. The press is supposed to be the “fourth estate:” an institution whose very existence is protected by the constitution from governmental interference. The media have a sacred duty to aggressively report the news as accurately as they can. Leaving out sources of important information is hardly accurate reporting. In the lead up to Iraq, the Bush Administration was hell-bent on war, the Congress was controlled by Republicans, who loved their cowboy president, and the Democrats in Congress were too afraid of being called "weak on national security" to question the administration. The judiciary is in no position to make a ruling on going to war, so it was left up to the press to carefully and accurately report information leading up to the war. Unfortunately, they ended up being a mouthpiece for the administration. There was very little evaluation or corroboration of the claims made by the administration in the mainstream media. I suppose that they sold papers, but they did the American people, and the world, a terrible disservice.

As I read in this interesting article, the mainstream press, in general, seemed intent on encouraging the American people to support a war in Iraq. Now that Iran seems to be the next target in the “axis of evil,” ABC News is using anonymous sourcing of information for its reporting on Iran’s nuclear program. Specifically, ABC News cites only "sources" for its reporting that "Iran has more than tripled its ability to produce enriched uranium in the last three months," and "Iran could have enough material for a nuclear bomb by 2009." No more information about the "source" of this information is given.

By failing to reveal even the most basic information about its sources, ABC News’ viewers cannot be informed consumers of information. I assume that the anonymous sources ABC News is using are officials from the Bush Administration. Unfortunately, this administration has demonstrated that it will mislead the press and the public when it is in its political interests to do so. ABC News’ response to “just trust us” is completely inadequate; we were asked to trust the press and this administration before, and here we are entering the fifth year of a terrible war.

Sometimes Lawyering is Fun!

The law is a strange animal – some would even say, "The law is an ass." Whenever you have a group of hotshot blowhards (oops, I mean lawyers) participating in an adversarial system, where the arbiter of justice was also once a hotshot blowhard himself, strange legal standards and practices are bound to occur. I keep my eyes peeled for amusing legal anecdotes, and have found some of the following in my practice, and others through the lawyerly grapevine.

The role of appellate court is to examine the decision of a lower court, and decide whether to affirm, modify, or reverse lower court’s decision. The standards used by courts of appeal to review decisions and holdings of lower courts vary based on what the appeals court is being asked to reconsider. When a lower court judge makes his final decision in a case, he must make findings of fact and conclusions of law. If the losing party decides to appeal the decision based on a factual finding it considers incorrect, the appeals court will only reverse the lower court’s finding of fact if it is “clearly erroneous.”

This standard seems straightforward, but it is sometimes difficult for courts to explain what “clearly erroneous” means. One odd explanation is from a decision where an appeals court was asked to overturn a finding of fact made by the lower court. The Seventh Circuit Court of Appeals refused to overturn the a lower court’s finding of fact because "our standard to reverse an erroneous finding of fact is such that the error must have the odor of 5-week old unrefrigerated dead fish." See Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228 (7th Circuit 1988).

I learned about the standard because a colleague was attempting to use this standard in an unrelated case to argue that the lower court’s error had that peculiar odor in the case he was handling. It’s one of my favorite legal standards because it is both vivid and ridiculous.

In another case, an attorney filed a motion which was, apparently, completely incomprehensible to the court. The court entered an order
giving the filer a verbal smackdown with a quote from Billy Madison.

"Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there any thing that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Finally, litigants representing themselves, called pro se litigants, often create problems of their own. I would never recommend that someone represent himself pro se – the law can be extremely intricate, and most people get themselves into trouble. However, one plaintiff, who was incarcerated, filed a “Motion to Kiss My Ass,” in which the relief he requested was for "all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother f*cker you.” He also filed approximately 75 other frivolous and creative motions. These motions included: "Motion to Behoove an Inquisition," "Motion for Judex Delegatus (not sure what that is)," "Motion for Restoration of Sanity," "Motion to Renounce Citizenship," and "Motion for Skin Change Operation." Take a look here and here for a more detailed analysis.

See, the law is fun!

Going to the chapel....

To start off, I'll write about a topic near and dear to my heart: gay marriage. Before I settled down, I never contemplated the need to get married. It was something that straight folks did, which was fine with me, but seemed neither an option nor a necessity for gays and lesbians. But, I fell in love and went to law school, and learned that my partner and I are completely unprotected under the law.

With some contractual finagling , we can create kind of complex partnership agreement to try to imitate at least some of the rights and responsibilities of marriage for my partner and me. But, while we can make a legally binding agreement as to some issues, we can't imitate the 1,138 federal rights and benefits afforded automatically to married couples, such as automatic "next of kin" status in medical emergencies; any of the benefits of the Family and Medical Leave Act (if I get sick, she doesn't receive the 12 weeks of leave to care for me); the right to share equitably all jointly held property and debt (think big tax consequences if one of us dies or we break up); family-related Social security benefits, income and estate tax benefits; disability benefits; family-related military and veterans benefits and other important benefits; and purchase continued health coverage for a domestic partner after the loss of a job. That's really just the tip of the iceberg.

I hope that all of you straight married folks realize how lucky you are. Look at your spouse and realize that if something goes horribly wrong, and one of you is sick or canned or you split up, there is a legal framework you can utilize to protect yourself and your family. You don't have to do anything more than go to Vegas and get married by a man dressed as Elvis. I'll spend hours of my own time to draft wills, agreements, and powers of attorney. Then, I'll spend hundreds or thousands of dollars to have them reviewed by another lawyer. These documents will be revised again whenever we sell or buy property, or move, or have children.

Well, at least we don't live in Virginia. Same-sex couples there cannot make enforceable contracts which in any way mirror the rights of married couples. So, contracts regarding home ownership and such are out the window. Makes me wonder what Mary Cheney and Heather Poe are thinking.

Mission Statement

A little background: I am a lawyer praticing law in the U.S. Most of my work is litigation-based, which will probably be obvious because I think a lot about Rules of Civil Procedure. Other than that, and the information contained under the header of the blog, I don't intend to give too much more information. Law firms and their clients generally prefer to keep things "hush hush" and I have no plans to draw attention to my identity, that of my employer, or any of my clients' identities.

The purpose of this blog is essentially to give myself an outlet to vent frustration or anger with some aspect of the political system and/or to flush out nuances or issues in the law which are interesting to me. By writing about and fiddling around with these issues, I am hoping to understand them better and refine my viewpoints and practice. If someone comes across this blog and finds some stimulation or entertainment, all the better.