Saturday, April 04, 2009

Activist judges

It is clear that there are judges that just ignore the law and rule according to their proclivities. We need not a one of them actually sitting on the bench, anywhere.

However, every time a ruling goes against your position on issues is not evidence that a judge, or judges are being activist.

I have read both the California Supreme Court decision overturning the ban on gay marriage and I have read the Iowa Supreme Court decision. The rulings are significantly different.

The California case: was it constitutional have a a civil union system for same-sex couples and a marriage system for opposite sex couples if they were fundamentally the same system, just called something different. This is the 'separate but equal' issue that is well established to be unconstitutional at the federal level, and the California court found it was also unconstitutional at the state level. There is no activism necessary to find that position. It is clear cut. The California Court did address other items that makes it an important part of the Iowa decision which went right to the issue of denying gays the right to marry because their choice of partner was same sex.

The County seeks to undercut the plaintiffs’ equal protection claim by asserting the plaintiffs are not similarly situated to heterosexuals. The County references this threshold test in this case and asserts the
plaintiffs are not similarly situated to opposite-sex couples so as to
necessitate further equal protection analysis because the plaintiffs cannot
“procreate naturally.”

Therefore, with respect to the subject and purposes of Iowa’s marriage
laws, we find that the plaintiffs are similarly situated compared to
heterosexual persons. Plaintiffs are in committed and loving relationships,
many raising families, just like heterosexual couples. Moreover, official
recognition of their status provides an institutional basis for defining their
fundamental relational rights and responsibilities, just as it does for
heterosexual couples. Society benefits, for example, from providing samesex
couples a stable framework within which to raise their children and the
power to make health care and end-of-life decisions for loved ones, just as it
does when that framework is provided for opposite-sex couples.
In short, for purposes of Iowa’s marriage laws, which are designed to
bring a sense of order to the legal relationships of committed couples and
their families in myriad ways, plaintiffs are similarly situated in every
important respect, but for their sexual orientation. As indicated above, this
distinction cannot defeat the application of equal protection analysis

But both Courts make an assumption that those opposed to gay marriage seemingly refuse to consider:

The County initially points out that section 595.2 does not explicitly
refer to “sexual orientation” and does not inquire into whether either
member of a proposed civil marriage is sexually attracted to the other.
Consequently, it seizes on these observations to support its claim that the
statute does not establish a classification on the basis of sexual orientation
because the same-sex civil marriage ban does not grant or withhold the
benefits flowing from the statute based on sexual preference. Instead, the
County argues, section 595.2 only incidentally impacts disparately upon gay
and lesbian people.
The County’s position reveals the importance of accurately and
precisely defining the classification in analyzing all equal protection
challenges. The manner in which a classification is defined impacts the
utility of an equal protection analysis as a means of revealing discrimination.
Therefore, it is critical that a court reviewing the statute identify the true
nature of the classification.
It is true the marriage statute does not expressly prohibit gay and
lesbian persons from marrying; it does, however, require that if they marry,
it must be to someone of the opposite sex. Viewed in the complete context of
marriage, including intimacy, civil marriage with a person of the opposite sex
is as unappealing to a gay or lesbian person as civil marriage with a person
of the same sex is to a heterosexual. Thus, the right of a gay or lesbian
person under the marriage statute to enter into a civil marriage only with a
person of the opposite sex is no right at all. Under such a law, gay or
lesbian individuals cannot simultaneously fulfill their deeply felt need for a
committed personal relationship, as influenced by their sexual orientation,
and gain the civil status and attendant benefits granted by the statute.

The Court recognizes that at the core, sexual orientation is a fundamental characteristic of people and creating laws based on the characteristic is constitutionally flawed.

Instead, a gay or lesbian person can only gain the same rights under the
statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class—their sexual orientation. In re Marriage Cases, 183 P.3d at 441. The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so “closely correlated with being homosexual” as to make it apparent the law is targeted at gay and lesbian people as a class. See Lawrence, 539 U.S. at 583, 123 S. Ct. at 2486, 156 L. Ed. 2d at 529 (O’Connor, J., concurring) (reviewing criminalization of homosexual sodomy and concluding that “[w]hile it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such
circumstances, [the] sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”). The Court’s decision in Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), supports this conclusion. Romer can be read to imply that sexual orientation is a trait that defines an individual and is not merely a means to associate a group with a type of behavior. See Romer, 517 U.S. at 632, 116 S. Ct. at 1627, 134 L. Ed. 2d at 865–66 (holding an amendment to a state constitution pertaining to “homosexual . . . orientation” expresses “animus toward the class that it affects”).

By purposefully placing civil marriage outside the realistic reach of gay and lesbian individuals, the ban on same-sex civil marriages differentiates implicitly on the basis of sexual orientation. See Kerrigan, 957 A.2d at 431 n.24; Conaway v. Deane, 932 A.2d 571, 605 (Md. 2007). Thus, we proceed to analyze the constitutionality of the statute based on sexual orientation discrimination.

Recognizing the situation as presented is not activism, it goes to the heart of the issues. Finally, the reasons WHY there is an anti-gay marriage ban were addressed. I hear these reasons all the time and the court addresses them well.

The County has proffered a number of objectives supporting the marriage statute. These objectives include support for the “traditional” institution of marriage, the optimal procreation and rearing of children, and financial considerations.
The first step in scrutinizing a statutory classification can be to determine whether the objectives purportedly advanced by the classification are important. “The burden of justification is demanding and it rests entirely on the State.”

I am not going into the Court's reasoning, in every case it is straight forward and clearly points out that the objectives are not met in any way by the law as written. In the most fundamental way, the Court asks the question: does the gay marriage ban protect or promote traditional marriage. The answer is clearly no to anyone that is willing evaluate consequences. Does the gay marriage ban encourage more people to marry? No. Does the gay marriage ban encourage more people to have children? No. Will gay marriage cause straight couples to avoid marriage? No. Will gay marriage cause straight couples to have less children? No. These are obvious to anyone willing to consider them.

My issue is always individual rights. Infringe on my rights to protect others. The gay marriage ban does not do that. The ban does not protect the rights of others. Gay marriage does not stop straight couples from marrying; gay marriage does not prevent straight couples from raising children. And arguments that gay marriage does not support the growth of healthy children ignores that many marriages - gay and straight, do not have children as a goal.

If you support bans on gay marriage, show me where the infringement of my rights is necessary to protect someone elses rights. Please, do not start with the argument that there is no Constitutional right to marriage. Your ignorance would be clear.

Leading Role

Our current President, 'in a leading role of a lifetime' continues to act poorly without the script right in front of him. To wit:

In America, there is a failure to appreciate Europe's leading role in the world.

I must ask the question...actually, the statement BEGS the question: What leading role is Europe playing?

Economics? Nope.
Military? Nope.
Security and defense? Not even for itself.
Relief? Nope.

Well, maybe as a garden for cowards and ass-kissing girlie-men.

Neither in innovation, nor exploration.

Obama thinks Europe, I guess, is a unified nation, acting as one big offset to American hegemony. Put Germany, France and Great Britain in the same room and see what kind of...oh yea, we kinda did that this week and we saw outstanding leadership one.

I can't think of a single thing that makes me think, "Europe does that so well, we should be doing that too!". Nothing. Obama of course thinks Europe does lots of things well - I guess. Ask him to name something Europe leads in and I can guarantee that a super-majority of Americans will say "and more power to thanks!".

You know, come to think of it, if we HAD to have an 'actor' playing the leading role of President of the United States, we could pick from just about anyone that has played that part in the last 10 years and get lines delivered better and with more authority than the current understudy...

I have often been told this position is wrong, but experience says different. Leadership is an inherent quality - it can be nurtured, trained and directed, but it can not be taught or learned. Apparently, it can't be scripted on a teleprompter either.

Wednesday, April 01, 2009

Tea Party Focus

There is much discussion going on all over the place concerning the focus of Tea Parties - I brought up the issue in last night's radio show.

1. Tea Parties got their start on the anger over the Stimulus Package size and the amount of pork AND the absolute uselessness of it to actually address the issues facing the economy. Therefore, government spending in general, and pork/stimulus spending in particular need to be a primary focus. But Congress can either tax or demand printing for any amount of spending they want to do so just focusing on the spending is not enough.

2. Three things:
a. Freeze government spending at 2008 levels. Any extra spending necessary comes out of next years budget
b. Taxes: A one year moratorium of Federal taxes. Then, a flat tax (I don't have a problem with the just announced GOP plan of two versions)
c. A movement to replace every Congressperson that voted for the bailouts (2008 and after) and/or the Stimulus bill regardless of party.

3. The above addresses spending, income and the judgment displayed (or failed to be displayed) in matching the two.

4. Two of the items have immediate actions (Freeze and moratorium) and long term planning actions: tax code change and elections.

Let's go.