Immediately following the release of the Supreme Court ruling on Prop. 8, court watchers, advocates, and constitutional scholars were trying to sort out what, in a practical sense, the ruling meant fo the legality of gay marriage in California.
Wednesday mid morning, California Attorney General Kamala Harris issued a statement that pretty much answers the question.
Here’s a clip from her official statement.
Attorney General Kamala D. Harris today declared that the United States Supreme Court’s historic opinion in Hollingsworth v. Perry means that every county in the State of California must now recognize the right of same sex couples to legally marry and asked the Ninth Circuit Court of Appeals to lift its stay and allow same-sex marriages to take place.
“The Supreme Court’s historic ruling in Hollingsworth v. Perry means that same-sex couples have the fundamental right to be legally married in all of California’s 58 counties,” said Attorney General Harris. “The Court agreed with our argument that opponents of same-sex marriage lacked the legal standing required to bring the issue to the court. Same-sex marriages can legally resume in California as soon as the Ninth Circuit Court of Appeals lifts its stay on the District Court Ruling. I ask that the Ninth Circuit lift this stay immediately, because gay and lesbian couples in California have waited long enough for their full civil rights.”
In an earlier letter to Governor Jerry Brown, Harris advised that, should the challenge to Prop. 8 be found to have no standing (as was the case), the State Department of Public Health should instruct county clerks and recorders in all 58 counties to resume issuing marriage licenses to and recording the marriages of same-sex couples.
Bottom line, same-sex marriages will resume as soon as the Ninth Circuit Court of Appeals lifts its stay on the District Court ruling.
It appears that no other action is required.
Let the wedding bells ring!
Photo by LABaseballFan courtesy of Wikimedia Commons
MAIN PART OF DOMA IS STRUCK DOWN, RULED UNCONSTITUTIONAL IN 5/4 RULING…..PROP 8 APPEAL SENT BACK TO STATE FOR LACK OF STANDING
DOMA is found unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. “DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty.”
“DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages,” writes Justice Kennedy, writing for the majority.
“What this means, in plain terms,” writes Amy Howe of SCOTUSBLOG, which has been live-blogging the rulings, “is that same-sex couples who are legally married will be entitled to equal treatment under federal law– with regard to, for example, income taxes and Social Security benefits.”
Married gay and lesbian couples are entitled to federal benefits, the Supreme Court ruled on Wednesday in a major victory for the gay rights movement.
In a second decision, the court declined to say whether there is a constitutional right to same-sex marriage. Instead, the justices said that a case concerning California’s ban on same-sex marriage, Proposition 8, was not properly before them. Because officials in California had declined to appeal a trial court’s decision against them and because the proponents of Proposition 8 were not entitled to step into the state’s shoes to appeal from the decision, the court said, it was powerless to issue a decision.
The ruling leaves in place laws banning same-sex marriage around the nation. Its consequences for California were not immediately clear, but many legal analysts say that same-sex marriages there are likely to resume in a matter of weeks.
SUPREMES SEND PROP 8 CASE, HOLLINGSWORTH V. PERRY, BACK TO STATE FOR LACK OF STANDING
Here’s the plain English version from the NY Times:
In the California case, the court ruled that opponents of same-sex marriage did not have standing to appeal a a lower-court ruling that overturned California’s ban. The Supreme Court’s ruling appears to remove legal obstacles to same-sex couples marrying in the state, but the court did not issue a broad ruling likely to affect other states.
A divided U.S. Supreme Court gave a victory to the gay-rights movement, striking down a federal law that denies benefits to same-sex married couples and potentially clearing the way for weddings to resume in California.
The court stopped short of declaring a constitutional right for gays to marry, or even ruling directly on California’s voter-approved ban, as the justices considered the issue for the first time.
The decisions in the two cases sustain the momentum that has grown behind same-sex marriage over the past decade. With a 5-4 procedural ruling in the California case, the court reinstated a trial judge’s order allowing at least some gay marriages there. And by invalidating part of the U.S. Defense of Marriage Act by a different 5-4 majority, the court rejected many of the justifications for treating same-sex and heterosexual couples differently.
Interestingly, the decision on Prop 8 features a different 5/4 configuration with Roberts writing for the majority.
“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” he said. “We decline to do so for the first time here.”
Justices Ruth Bader Ginsburg, Stephen Breyer, Antonin Scalia and Elena Kagan joined [Roberts] to form the majority.
The court’s action, while not a sweeping ruling, sends the case back to California, where state and federal judges and the state’s top officials have said same-sex marriage is a matter of equal rights.
Okay, that’s it for the moment. Lots of good national coverage. This is an excellent day for equal rights in the nation.
PROVISION OF VOTING RIGHTS ACT GUTTED BY SUPRIME COURT DECISION
The web and my email box are loaded with angry expert opinions and cries of anguish over Tuesday morning’s Supreme Court ruling on a key provision of the 1965 Voting Rights Act.
Garrett Epps from the Atlantic writes about the dispiriting decision in appropriately blistering terms:
“Hubris is a fit word for today’s demolition of the [Voting Rights Act],” Justice Ruth Bader Ginsburg wrote in her dissent from the 5-4 decision in Shelby County v. Holder, announced Monday.
She nailed it.
The decision invalidated the requirement of “preclearance” of voting changes by states and jurisdictions with particularly bad records of racial discrimination. (My colleague Andrew Cohen looks at the practical effect of this decision on voting rights.) But beyond that, it illustrates the absolute contempt that the Supreme Court’s conservative majority harbors toward what is, after all, the central branch of our federal government: Congress, elected by the people and charged with exercising “all legislative powers” granted by the Constitution.
A brief reading of the Constitution reveals how seriously the Framers took the idea of congressional centrality. An even briefer glance at the Fifteenth Amendment shows that the Framers of that measure trusted Congress, not courts, with setting national policy against racial discrimination in voting.
Not this Court, which Monday invalidated Section Four of the Voting Rights Act — not on the grounds that it hasn’t worked; not even on the grounds that it won’t work; but on the grounds that the Court didn’t think Congress did as good a job as it could have.
In an opinion by Chief Justice John G. Roberts, the five conservatives (Roberts, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito) brushed aside a measure they explicitly agreed was (1) needed when originally enacted (2) dramatically successful since enacted and (3) reauthorized by Congress four times over 40 years, each time with a detailed legislative process and with careful adjustment to its terms.
To understand the success of the VRA, we must briefly review how it works. The act as a whole forbids certain kinds of manipulation of voting laws to exclude or dilute minority votes. The “coverage formula” provision in sections 4 designate certain sections of the country, on the basis of history, as being the most flagrant offenders of the Fifteenth Amendment’s command that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Under Section 5, those jurisdictions had to get preapproval from the Justice Department or from a federal court before they could change their voting procedures at all. The reason was that previous voting-rights laws had been neutralized when the Deep South jurisdictions invented new ways not covered by the laws of blocking black voters. This time, the state would have to justify its restrictions, rather than forcing the government and citizens to go to court each time a new stratagem appeared.
The Fifteenth Amendment makes clear that states have no “reserved power” over violations of the right to vote “by any State on account of race, color, or previous condition of servitude.” These are transferred from state authority to federal prohibition. And Congress, not the courts, is to enforce that prohibition “by appropriate legislation.”
In other words, the majority’s limits on Congress’s power do not flow from the text, history, or structure of the Constitution; as Ginsburg’s dissent persuasively shows, they do not flow from the Court’s earlier precedent either. They flow from a sense by five justices (none of whom has ever served a day in legislative office) that Congress, on the whole, can’t do as good a job at anything as they can.
This is hubris indeed. Today it has damaged the ability of citizens to use the ballot to call their rulers to account. But that damage is only a part of a hole slowly widening in the fabric of constitutional congressional authority. There’s no reason to believe that this majority does not intend further unraveling in the near future.
SUPREMES RULE FOR BABY VERONICA’S ADOPTIVE FAMILY NOT NATIVE AMERICAN FATHER AND FAMILY
This Solomonic/halving-the-baby decision is a heartbreaker however you look at it.
An American Indian child being raised by her biological father should not have been taken from her adoptive parents, the Supreme Court ruled Tuesday, saying that a federal law devised to keep Indian families together did not apply in the case.
The 5-to-4 decision, which reversed a ruling by the South Carolina Supreme Court, found that the case represented an exception to the 1978 Indian Child Welfare Act, a federal law that made it more difficult for American Indian children to be removed from their families. That landmark legislation effectively ended the practice of taking Indian children from their homes and placing them in boarding schools and foster care.
The court’s majority held Tuesday that the case, Adoptive Couple v. Baby Girl, No. 12-399, did not involve removing a child from an Indian home because the girl’s father had relinquished his parental rights before the girl’s birth and her biological mother had agreed to allow the South Carolina couple to adopt the girl.
Four months after the child’s birth, the father, Dusten Brown, a member of the Cherokee tribe, changed his mind and sought custody of his daughter. He said he had not realized that his former fiancée was going to put the child up for adoption.
The girl was in the process of being legally adopted by Matt and Melanie Capobianco, a white couple who raised her for 27 months before South Carolina courts ruled in favor of Mr. Brown. The child, now nearly 4, has been living with Mr. Brown in Oklahoma for the past year and a half. The state courts found that both the Capobianco family and Mr. Brown had provided the girl with safe, loving homes.
The Baby Veronica case, named for the girl at the center of the dispute, has stirred powerful emotional responses from child welfare groups, adoptive parents and Indian tribes, all of whom have sought a clearer legal standard of how the Indian Child Welfare Act should be applied when it appears to conflict with state law.
HOW WILL THE SUPREMES RULE ON GAY MARRIAGE? WILL THEY BE BRILLIANTLY GAME-CHANGING OR DINOSAURISHLY GHASTLY? OR SOMETHING IN BETWEEN? HERE’S ONE RUMOR-LADEN SPECULATION
While we wait for the Supreme Court’s rulings on the two gay rights cases, California’s Prop 8 and DOMA (Defense of Marriage Act) the speculation and the worry about the various possible decisions, and combinations of decisions, is starting to rev up again.
One story we recommend is by UCLA law school prof and Constitutional expert, Adam Winkler, writing for the New Republic. Yes, the essay is a bit in the “What if truly horrible things happened?!!” vein, but it’s smart and thoughtful, and worth your time. Here’s a clip:
Ever since the Supreme Court heard two major gay rights cases in March, the conventional wisdom among court-watchers is that we’re likely to see a split decision. The Court, according to most experts, will probably strike down the Defense of Marriage Act and issue a narrow ruling, perhaps on procedural grounds, on the California Proposition 8 same-sex marriage case. That outcome would be an incremental but important step forward in the progress of gay civil rights. Although gay marriage would not yet be recognized as a fundamental right, the Court would establish that the federal government can’t deny gay couples that are already lawfully married access to federal benefits, like social security or spousal tax exemptions.
Yet what if the Court doesn’t strike down DOMA? This past weekend, I visited Washington, D.C., and spoke to well-placed lawyers about the prospects for DOMA. Surprisingly, I heard speculation that the Court would defy the conventional wisdom on DOMA. No one said the Court was likely to endorse the law. But there was serious concern that the Court would do in the DOMA case exactly what the conventional wisdom says the justices will do in the Proposition 8 case: avoid a definitive ruling by deciding the case on procedural grounds. If the speculation is true, the DOMA case could end up a major setback for the gay rights movement. And it could put the Obama administration on a crash course toward a constitutional crisis.
Now rumors about pending Supreme Court decisions should be taken with a whole shaker full of salt. The Court, known as the tightest ship in Washington, rarely leaks. Yet last term’s rumors that Chief Justice John Roberts had changed his vote in the Obamacare case at the last minute were borne out. Especially given the enormous stakes in the DOMA case, perhaps it’s time to consider what might happen if the justices were to kick the case without a final ruling on the merits of DOMA’s constitutionality.
The scuttlebutt focuses on the conservative justices…
PS: Adam Winkler was one of my esteemed panelists at this year’s LA Times Festival of Books so I can personally attest to his general smart-osity and stellar analytical abilities.
OAKLAND EMBRACES PROMISING SCHOOL REFORM MODEL TO ADDRESS INTERGENERATIONAL PROBLEMS STUDENTS FACE IN THE VIOLENT AND COMPLICATED CITY
The Oakland Unified School District has committed to an ambitious plan to implement full-service “community schools,” equipped with staff trained to support students’ social, emotional and health needs, as well as their academic growth.
The Center for Investigative Reporting has a large story on what Oakland is attempting. Here’s a clip that will give you an idea of what they’re up to. But for those interested in school reform and strategies to shatter the so-called school to prison pipeline, you’ll want to read the whole thing.
…..Enrollment in traditional Oakland public schools has plummeted by more than 16,000 students since 2000, according to district officials, as foreclosures have forced families out of the city and charter schools have siphoned off students. During the same period, the district has cycled through six superintendents and narrowly avoided bankruptcy only through a state takeover that ended in 2009.
Now, under growing public pressure to improve student safety and achievement, the district is attempting to reinvent itself by turning its 87 schools – including Fremont – into what are known as “full-service community schools,” equipped with staff trained to support students’ social, emotional and health needs, as well as their academic growth.
The concept is one that has been around for decades but is now gaining traction in districts across the U.S. as other reform efforts run up against problems related to poverty. The embracing of community schools is a stark shift from the “no-excuses” movement, which held that schools should be able to push all students to success no matter what their background. That idea dominated education reform for much of the past decade.
Community schools are just the opposite. At its core, the concept represents an explicit acknowledgement that problems with a child’s home life must be addressed to help the student succeed academically.
“There’s actually a lot of agreement that we need to work on both improving schools and addressing poverty,” said Michael Petrilli, executive vice president of the Thomas B. Fordham Institute, a conservative education think tank based in Ohio and Washington, D.C. “Particularly, as reformers get into the work of trying to run schools and make the system work better, they see in black and white just how important addressing the larger social problems is.”
Marty Blank, director of the nonprofit Coalition for Community Schools, which connects organizations and school districts doing community school work, estimates that at least 50 school districts around the country are launching similar initiatives. Chicago is home to more than 175 community schools. Portland, Ore., has 67 and Tulsa, Okla., 31. New York City, with the nation’s largest school system, has 21 community schools, and that number might grow soon, depending on this year’s mayoral election; the United Federation of Teachers is pushing for the city’s next mayor to adopt the strategy….
And where is LAUSD on this kind of sweeping reform?
Well, I guess it is weirdly encouraging that LA Schools have committed $30 millionto buy nearly every kid in the district an iPad. But such wonderful learning tools require the practical and philosophical infrastructure to go with them. We believe Superintendent John Deasy is attempting to move in that direction. However the district as a whole has yet to even vaguely contemplate the kind of game changing commitment that we’re seeing in Oakland.
MICHAEL HASTINGS: MAKING NOISE AMID THE SILENCE
Fearless journalist Michael Hastings died in terrible fireball of a car wreck at approximately 4:25 a.m. on Tuesday, in the 600 block of North Highland Avenue. Hastings, 33, was the guy who did that 2010 interview/profile with General Stanley McChrystal for Rolling Stone, “The Runaway General,” which resulted in the general resigning his post as the supreme commander of the U.S.-led war effort in Afghanistan, after McChrystal and his staff openly talked smack about the foreign policy team in the Obama White House.
Yet, Hastings was not a sensationalist, as he was sometimes portrayed by detractors following that news blasting profile, according to colleagues—and those of us who read his work carefully—he was someone who wanted to write stories that mattered, stories without spin, stories that were fearless, stories that illuminated. Stories that were true.
Moreover, Hastings had earned the right to pursue those stories. He wasn’t the guy who showed up on scene with the spiffy, newly bought flak jacket. He’d paid dues. As Rolling Stone reports in its obituary:
For Hastings, “…there was no romance to America’s misbegotten wars in Afghanistan and Iraq. He had felt the horror of war first-hand: While covering the Iraq war for Newsweek in early 2007, his then-fianceé, an aide worker, was killed in a Baghdad car bombing…..
As Jon Lee Anderson wrote of Hastings on Wednesday in the New Yorker, we will miss “….his readiness to make noise amid agreed silences.”
He was, friends and colleagues all agree, an enormously likable and gentle man. He was also a startlingly fine actor who left behind him an array of wonderfully-crafted characters. One of those characters was…indelible.
REGRETTING LB POLICE CHIEF JIM MCDONNELL’S DECISION NOT TO CHALLENGE BACA
Tuesday evening, Long Beach Chief of Police Jim McDonnell announced that he would not be running against LASD Sheriff Baca as expected. In the days since, various newspapers have expressed their disappointment that the Sheriff’s biggest competition will be backing out of the race.
Now he says he won’t run for sheriff because it would require too much time spent on fundraising and politicking. His decision, while understandable, is disappointing for many reasons. McDonnell is a well-respected cop who recently served on the county commission that criticized Baca’s management of the jails.
Well, that’s disappointing. One of the most anticipated races of Southern California’s 2014 election season seems to have fallen apart with Long Beach Police Chief Jim McDonnell’s announcement that he won’t run for Los Angeles County sheriff.
That’s good for Long Beach, but not for the county at large. McDonnell is a smart, talented and highly respected police chief who would have brought welcome competition to the race.
WHY WE SHOULD TAKE JUVENILE JUSTICE REFORM SERIOUSLY
The American Psychological Association’s Kerry Bolger, in a notable post for the APA blog “Psychology Benefits Society,” explains the enormous importance of reforming the US juvenile justice system.
Here are the first two reasons listed:
1. Overreliance on incarceration is unnecessary.
Many young people in juvenile correctional facilities are incarcerated for low-level and nonviolent offenses. In 2010, for example, of the 59,000 youths under age 18 confined in juvenile facilities in the U.S., only 1 in 4 was detained or committed for a serious violent offense. About 12,700 kids (1 in 5) were confined only for status offenses (such as truancy, curfew violation, or running away) or technical violations (such as failing to report to a parole officer).
A number of states have shifted their youth justice policies away from overreliance on incarceration, with no accompanying increase in juvenile crime.
2. Incarceration doesn’t reduce future crime.
Juvenile incarceration doesn’t reduce re-offending, but rather increases it, especially among youth with less-serious delinquency histories.
That’s no surprise, considering that youth in juvenile correctional facilities are exposed to more serious offenders and to widespread physical and sexual violence in confinement.
STILL NO SCOTUS RULINGS ON GAY MARRIAGE (AND OTHER PRESSING ISSUES)
The Supreme Court did not issue rulings on the Defense of Marriage Act (DOMA), Prop 8, affirmative action, or the Voting Rights Act. The court will now likely make decisions on the highly anticipated gay marriage cases on June 26 or 27, at the very end of the court’s current term.
HuffPost’s Luke Johnson has a quick update on the cases (and an entertaining little video). Here’s a clip:
The court is first expected to make a decision on Fisher v. University of Texas, challenging the university’s affirmative action policy in college admissions. The justices then will likely rule on the constitutionality of Section 5 of the Voting Rights Act along with decisions on the Defense of Marriage Act and California’s gay marriage ban, Proposition 8.
A bunch of notable bills advanced in the CA legislature this week. Below is a round-up of the ones that most caught our eye.
STATE LAWMAKERS PASS GUN CONTROL BILLS AND MAKE MOVES TO REVOKE BOY SCOUTS TAX EXEMPTION
Twelve gun-control bills advanced through either the senate or the assembly, as did a bill to remove tax-exempt status from the Boy Scouts of America and other organizations that discriminate based on sexual orientation or religion all advanced in either once house or the other.
LA Times’ Patrick McGreevy and Chris Megerianhave a good run down on the main gun control measures. Here are some clips:
**Californians who want to buy ammunition would have to submit personal information and a $50 fee for a background check by the state, under a bill passed by the Senate. The state Department of Justice would determine whether buyers have a criminal record, severe mental illness or a restraining order that would disqualify them from owning guns.
Ammo shops would check the name on buyers’ driver’s licenses against a state list of qualified purchasers.
The goal of the bill is “to ensure that criminals and other dangerous individuals cannot purchase ammunition in the state of California,” said Sen. Kevin De Leon (D-Los Angeles), author of SB 53.
The Senate also OK’d a bill that would outlaw the sale, purchase and manufacture in California of semiautomatic rifles that can accommodate detachable magazines. The measure, SB 374 by Steinberg, also would require those who own such weapons to register them with the state.
The Assembly joined the action on guns by passing a measure to require the state Department of Justice to notify local law enforcement agencies when someone buys more than 3,000 rounds of ammunition.,,
BOY SCOUTS COULD GET TAX-EXEMPT STATUS YANKED
Here’s a clip from the same story regarding the measure passed by the state senate that would kill the Boy Scouts of America’s tax free status:
Senators on Wednesday voted to strip tax-exempt status from nonprofit groups, including the Boy Scouts of America, that deny participation based on sexual orientation or religion.
Sen. Ricardo Lara (D-Bell Gardens) said he was glad the Boy Scouts’ national council recently decided to allow openly gay minors to serve as scouts. But he said it was unacceptable that the organization did not also lift its ban on gays serving as adult leaders.
“We’ve given the Boy Scouts ample time to solve their discrimination problem, and they have chosen a path that still leads to discrimination,” Lara told his colleagues.
YOUTH SOLITARY CONFINEMENT BILL PASSES THROUGH CA SENATE
As you may remember, we’ve been tracking SB 61, a bill authored by Sen. Leland Yee ((D-San Francisco/San Mateo) that will both define and limit solitary confinement for kids in state and county lock-ups. The bill made it through the CA Senate on Wednesday.
…..While the United Nations has called on all countries to prohibit solitary confinement in juvenile cases, the harsh measure is commonly used in juvenile facilities throughout California. Six states – Connecticut, Arizona, Maine, Oklahoma, West Virginia and Alaska – ban solitary confinement for “punitive reasons.”
“The use of solitary confinement on a child is highly damaging and makes young people more dangerous and anti-social,” said Yee, a child psychologist. “Subjecting juveniles to solitary makes them more likely to reoffend, and more likely to suffer a lifetime mental illness.”
We’ll, of course, continue to track the bill’s progress.
A STRING FOSTER CARE BILLS MAKES IN THROUGH THE STATE SENATE
Several important foster care bills, also authored by Sen. Yee made it through the state Senate on Wednesday. The first bill fills in gaps in prenatal care for pregnant foster youth, gives priority housing, and provides other necessary services to young parents.
Another bill mandates that social workers actually see a foster child in his or her foster home on a regular basis—not just in meetings outside the home. (What a concept!)
Young parents in the foster care system face the challenges of being in foster care as well as being a young, usually single, parent. Studies of both groups have found that they will experience higher than average rates of poverty, unemployment and low educational attainment. Senate Bill (SB) 528 seeks to provide assistance to these parents so both they and their child can have a better chance of success.
“SB 528 will help pregnant youth in foster care prepare for parenthood by requiring local child welfare agencies refer pregnant youth to existing child and maternal health resources, including prenatal care and information about how to prevent subsequent pregnancies. This change is desperately needed,” said Amy Lemley, Policy Director for the John Burton Foundation, SB 528’s sponsor. “Currently, 20 percent of youth in foster care don’t access prenatal care until their sixth month of pregnancy, which has a range of negative outcomes include low birth weight. Los Angeles has started to take this approach and is seeing better birth outcomes among our state’s most vulnerable children.”
“Parenting and pregnant youth are twice as likely to drop out of high school as to graduate,” said Yee. “It is imperative that we provide basic resources and assistance for pregnant and parenting teens who are in foster care. SB 528 will assist these foster youth and their children at the most critical time in their lives, and will save taxpayer dollars in the long run.”
And about another of Lee’s foster care bills;
SB 342 will ensure that monthly social worker visits of foster youth happen in the home of the child, ensuring that social workers have a more complete picture of the child’s home life and welfare and are better able to support the child and the family. Data from the Department of Social Services shows that nearly 24 percent of all case worker visits occur outside the child’s home leading to instances where some placements were not been visited by a social worker for an extended period of time.
“Far too often, foster children are being placed in substandard group homes and foster homes because no one has visited the placement home for months,” said Yee. “When the state removes a child from their home, we have a responsibility to ensure that the home in which they are placed meets basic standards.
One would certainly hope so.
IN OTHER NEWS….STUDY SHOWS DISCRIMINATORY SUSPENSION AND ARREST RATES IN NYC SCHOOLS
The shockingly disproportionate application of school discipline to black and learning disabled kids that his been shown to plague states like Texas and Mississippi (and, to some extent, LAUSD) turns out to be very present in NYC according to a new study conducted by the New York City School-Justice Partnership Task Force.
Black students account for almost 63 percent of all arrests in New York City schools, even though they make up only 28 percent of the city’s student body, and are more than four times as likely to be suspended than their white peers, according to a report released today.
And the rate at which students are suspended in the city’s public schools has increased by about 40 percent since 2006, according to researchers for The New York City School-Justice Partnership Task Force, which was led by former New York Chief Judge Judith Kaye.
The 45-member task force — which includes city officials, education and justice system experts — spent the last two years examining disciplinary issues in New York City’s public schools.
Most worrisome are patterns of suspensions for students with disabilities and students of color in New York City and across the nation. In New York City alone during SY2012, students receiving special education services were almost four times more likely to be suspended compared to their peers not receiving special education services; Black students were four times more likely and Hispanic students were almost twice as likely to be suspended compared to White students. New York City Black students were also 14 times more likely, and Hispanic students were five times more likely, to be arrested for school-based incidents compared to White students.
Studies have shown that it is not the violent and egregious misbehavior that drives the disparities. For example, the Texas study showed that Black students had a lower rate of mandatory suspensions (suspensions for violence, weapons and other equally serious offenses) than White students. Black students exceeded White students only in the rates of suspensions for discretionary offenses.
ADDRESSING THE ISSUE OF LOCKING KIDS UP IN SOLITARY
While severe and overused in the adult justice system, solitary confinement is most destructive for still-developing youths. There have been numerous reports on the devastating effects of locking kids up for twenty-three hours a day (and WitnessLA has linked to them often), yet California still hasn’t defined what constitutes solitary, much less regulated it.
In an LA Times editorial, our pal Rob Greene lays out in unusually clear terms the consequences of putting kids in solitary confinement and what we need to do adequately address the issue. Here’s a clip (but be sure to read the whole thing):
Juvenile justice officials should at the very least have to certify that mental health evaluations were part of the decision-making process for each juvenile, and they should document all instances of solitary lockdown, under consistent standards and definitions. SB 61 by state Sen. Leland Yee (D-San Francisco) would require such standards and documentation. It’s a bill that deserves to move forward.
The Senate has been wary, and appropriately so, of moving forward on any bill that could impose costs on counties — costs that would be passed along to the state. The budget has been cut year after year, and now, when there may be some funding available, lawmakers must decide carefully what to do with it.
In making that decision, they should keep in mind that the state’s failure to meet the mental health needs of so many Californians has led directly to the prison overcrowding crisis, and that the failure to meet the mental health needs of inmates for decades has resulted in the court order to beef up in-prison care (at enormous cost) and to release tens of thousands of prisoners. The juvenile justice system is inextricably linked to the adult system and must deal with a similar, although more vulnerable, population.
GOV. BROWN’S OFFICE BEGINS APPEAL PROCESS TO GET SUPREME COURT INTERVENTION ON PRISON POP. CAP
Monday, California officials appealed the federal court decision to uphold an order that, by the end of 2013, the CA prison population must be further reduced by 9,000 inmates.
Deborah Hoffman of California’s Department of Corrections and Rehabilitation said Monday the state has appealed to the U.S. Supreme Court because the panel of federal judges “did not fully or fairly consider the evidence that with our greatly reduced prison population, prison health care now exceeds constitutional standards.”
In 2011, the legislature enacted California’s Criminal Justice Realignment law, which diverts lower level felons to the counties. Today the prisons hold 30,000 fewer inmates than they did when the federal judges ordered the state to reduce the prison population.
Monday’s filing is a notice of appeal to the district court stating California’s intention to ask the U.S. Supreme Court to intervene. It’s the first step in an appeals process that could take years — if the nation’s highest court decides to take up the case.
BRADY V. MARYLAND…FIFTY YEARS ON
Fifty years after Brady v. Maryland—the SCOTUS ruling that dictates prosecutors must present defendants with any and all known exculpatory evidence—there is little incentive and still no real accountability in place to keep prosecutors from breaking the Brady rule.
Last Thursday evening at a dinner in New Orleans, Keith Plessy and Phoebe Ferguson came together again to bestow an award on John Thompson, the noted death row exoneree, who was being feted by the Innocence Project New Orleans after nearly two decades of false imprisonment. The names of the presenters probably don’t ring a bell to you until you put them together and separate them with a “versus,” as in Plessy v. Ferguson. The descendants of the litigants of one of the worst Supreme Court decisions ever wanted to pay homage to a litigant who had belatedly benefited from one of its best. Who says irony is dead?
The timing of the Project’s 12th anniversary “gala” was propitious. It came just four days before the 50th anniversary of the Supreme Court’s decision in Brady v. Maryland, decided on this day in 1963, in which the justices unanimously declared that prosecutors have a constitutional obligation to share with criminal defendants all “exculpatory” evidence officials may have. “Society wins not only when the guilty are convicted but when criminal trials are fair,” wrote Justice William O. Douglass, for the Warren Court, as it again sought in those progressive days to enhance individual rights at the expense of government power.
Thompson is a free man today because of the so-called “Brady” rule. But he likely would have been a free man all along — without spending 14 years on death row — had his prosecutors obeyed the law in the first place. That dichotomy is what makes Thompson such a poignant symbol of the Brady rule. He proves both that it works and that it is deeply flawed; that it saves innocent people from being railroaded by prosecutors and that countless others are wrongly convicted and imprisoned anyway. The sad truth is that 50 years after Brady, in an increasingly complex criminal justice system, too many prosecutors still hide exculpatory evidence, and too few judges do anything about it.
AND MINNESOTA MAKES TWELVE…
The Minnesota Senate voted Monday to legalize gay marriage, and Governor Mark Dayton immediately announced he would sign the bill, allowing gay couples to marry by August. Go Minnesota!
The council, which represents more than 14,000 scouts and ranks as the nation’s 14th-largest scouting chapter, called for the Texas-based youth organization to go further by welcoming gays into the ranks of its adult volunteers as well.
In issuing its declaration on Tuesday urging a “true and authentic inclusion policy,” the Los Angeles group joined at least two branches in New York state that have pushed for allowing gays to work as troop leaders or staff members.
The Boy Scouts of America holds its annual national meeting on May 23 in Texas, where a resolution will be voted on that would end the century-old group’s policy denying membership to youths on the basis of sexual orientation.
AND WHILE WE’RE ON THE SUBJECT…
On Tuesday, Delaware’s state Senate voted to make DE the eleventh state to legalize gay marriage. (Way to go, Delaware!)
Less than an hour after the Senate’s 12-9 vote, Democratic Gov. Jack Markell signed the measure into law.
“I do not intend to make any of you wait one moment longer,” a smiling Markell told about 200 jubilant supporters who erupted in cheers and applause following the Senate vote.
NEW BILL WOULD FURTHER EQUALITY FOR TRANSGENDER YOUTH IN CA SCHOOLS
AB 1266, a bill in California Legislature introduced by Assemblyman Tom Ammiano, would allow transgender kids to participate in sex-segregated school sports and activities regardless of the sex listed on the student’s records. Passage of AB 1266 would be a huge step in the direction toward equal opportunities for trans youth who already face plenty of hardships and discrimination in school, as it is.
Over the last decade, the International Olympic Committee and the National Collegiate Athletic Association have adopted regulations for athletes who were born male but now consider themselves females and want to play on women’s teams.
And now, high schools are beginning to take on the issue as well, as a small but growing number students who identify themselves as transgender have begun demanding access to the same school activities, like interscholastic sports, that other students enjoy.
More than half a dozen states, from Washington to Massachusetts, have adopted rules to allow transgender students to compete on teams that correspond with their gender identities rather than the sex listed on their school records. Half a dozen more states are considering similar regulations. And a bill in the Legislature would make California the first to specifically guarantee by law that transgender students like Tony are allowed to play school sports.
“Transgender students deserve equal access to everything in public education, including sports,” said Tom Ammiano, the state assemblyman sponsoring the bill. “You can’t discriminate just because you’re uncomfortable with a young man transitioning to become a young woman.”
MAJORITY OF AMERICANS WRONGLY ASSUME GUN VIOLENCE IS ON THE RISE
Firearm-related crimes have seen a significant decrease over the last two decades, but most Americans are under the impression that gun crimes have increased since 1993 with only 12% of those surveyed aware of the decrease, according to a report released Tuesday by the Pew Research Center. Another Tuesday report from the Bureau of Justice Statistics says that the number of gun-related homicides dropped 39% from 1993 to 2011.
It’s unclear whether media coverage is driving the misconception that such violence is up. The mass shootings in Newtown, Conn., and Aurora, Colo., were among the news stories most closely watched by Americans last year, Pew found. Crime has also been a growing focus for national newscasts and morning network shows in the past five years but has become less common on local television news.
“It’s hard to know what’s going on there,” said D’Vera Cohn, senior writer at the Pew Research Center. Women, people of color and the elderly were more likely to believe that gun crime was up than men, younger adults or white people. The center plans to examine crime issues more closely later this year.
JURY AWARDS $1.1 MILLION TO PALMDALE TEENAGER SHOT BY LASD DEPUTY WHILE ON BIKE WITH TOY GUN
This week a jury awarded 19-year old William Fetters $1,127,600 in medical bills and damages for pain and suffering, after Fetters was shot on May 10, 2009 by Los Angeles County Sheriff’s deputy, Scott Sorrow.
Fetters, who was then 15-years -old, was riding his bicycle, and playing a tag-like game with his brother and friends, when he was shot.
Deputy Sorrow testified at trial that Fetters was brandishing a realistic looking toy gun that he refused to drop. This, the deputy said, caused him to fear for his life and that of his partner so he fired a single shot at Fetters.
The teenager was hit in the rear of the side of his chest.
According to Fetters, matters went as follows: he was riding his bike down the street toward a local baseball diamond, playing “cops and robbers” with his brother and friends as they went. As the boys rode, Sorrow approached in his car and asked Fetters to stop riding and drop the toy gun he was holding, and that he dropped it right away. After that, Fetters said, the deputy shot him. Then, as he lay on the ground wounded, yelling that the gun was just a toy, Sorrows handcuffed him.
(Sorrows also testified that he handcuffed the wounded boy after shooting him and seeing that the gun was on the ground and out of his reach.)
At the trial—and according to interview transcripts—-Sorrows insisted that Fetters did not drop his toy gun when ordered to do so, while Fetters said the opposite. The teen said he was scared, and when the deputy barked the order, he dropped the gun immediately, then tried to get off his bike, at which point Sorrows shot him.
Oddly, according to Fetters’ attorney Bradley Gage, in an earlier version of an interview transcript that was presented at a hearing for the case in 2012, Sorrows appears to say that that Fetters did drop the gun.
But for this month’s trial, said Gage, the same transcript was amended to read that Fetters did not drop the gun. When questioned about the discrepancy in trial, Gage said that Sorrows discribed the first version as a “typo.”
About the matter of whether Sorrow shot Fetters “with malice,” which the court was also asked to consider, the jury as unable to not a verdict. Thus a mistrial was declared for that part of the case. The question of “malice” is due to be tried again in mid April.
Sheriff’s Department spokesman Steve Whitmore said that the department strongly disagrees with this week’s jury judgment, and that Fetters was holding what appeared to be a real handgun which he pointed at the deputies when he was shot.
WHY ARE PEOPLE ARE DYING LIKE CRAZY IN SAN DIEGO COUNTY JAIL?
Reporters Dave Maas and Kelly Davis, have a startling story in San Diego City Beat showing that the jail death capital of California is….San Diego County.
Didn’t see that coming.
Maas and Davis note that jail inmate deaths have been tracked nationally only since 2000, when Congress passed the Deaths in Custody Reporting Act (DCRA) to “help address increasing reports of neglect and abuse in U.S. jails.”
According to Department of Justice statistics tracked from the period of 2000 to 2007, for that time period, San Diego was second in the state, for jail deaths. (Alameda county was first.)
Then when the reporters began gathering stats from 2007 to the present through public records act requests, things got worse for SD, not better. In this newer period, San Diego County was at the top of California’s list—based on a calculation of deaths per 100,000 people (the standardized metric that is most often used for this kind of calculation so that one may compare apples to apples).
Riverside County, Alameda and Los Angeles ranked 2nd, 3rd and 4th, respectively, behind San Diego.
Next the reporters plan to drill down into the county’s figure so try to determine if any of those deaths were preventable.
SCOTUS JUSTICE RUTHIE’S VERY POWERFUL WHISPERS
One of the most to-the-point remarks in this week’s gay marriage hearings was said so softly that many in the court gallery didn’t hear Justice Ruth Bader Ginsburg’s words when she talked about “skim milk.”
Greg Stohr at Bloomberg has a nice story about the physically diminutive, but intellectually and strategically powerful Miz Ruth.
Justice Ruth Bader Ginsburg is sometimes barely audible when she speaks at the U.S. Supreme Court. That doesn’t mean she isn’t heard loud and clear.
As the court took up same-sex marriage this week for the first time, the 80-year-old justice offered a reminder that she remains a force, the anchor of court’s liberal wing. At various points, she served as the hard-hitting questioner, the voice of experience and a source of wit.
Ginsburg delivered one of the most memorable lines of the two days of arguments when she said yesterday that a federal law limiting benefits to married gay couples would create “two kinds of marriage — the full marriage, and then this sort of skim-milk marriage.”
The quip drew chuckles throughout the packed courtroom. The laughter would have been louder except that many of the 500 onlookers couldn’t hear Ginsburg, whose soft speaking style means her words often get lost in the corners of the courtroom.
Her quiet manner and diminutive stature make Ginsburg an easy justice to underestimate — for those not familiar with her work.
“It is clear that she is respected and even somewhat feared by her adversaries on the bench,” said Garrett Epps, a University of Baltimore law professor who attended the argument.
The skim-milk analogy was her way of “explaining in clear terms — terms that will be remembered and carried forward to judges and citizens outside the court — what is wrong with the idea that the federal government can withhold the title of marriage to couples legally wedded in their states,” Epps said….
The New Yorker’s Jeffrey Toobin has a terrific profile of Ginsburgin the New Yorker earlier this month, but regrettably it’s hidden behind their paywall. However, if you don’t have your own subscription and can’t snatch a friend’s magazine, Toobin was interviewed on Fresh Air with Terry Gross about his profile, and it’s very good (and covers many of the same points as he did in the profile).
SUPES VOTE TO GIVE SHERIFF ASKED FOR $22 MILLION FOR PATROLS
At Tuesday’s LA County Board of Supervisors’ meeting the board voted to give the sheriff’s department $22 million to help shore up the LASD budget. The money is reportedly slated to pay for officers to adequately patrol the unincorporated areas of Los Angeles County—namely the areas that the sheriff’s department is legally obligated to patrol. (But why quibble.)
….Short on cash at the beginning of this year, Sheriff Lee Baca reduced patrols in unincorporated areas but not in cities and agencies where his department is contractually obligated to maintain a certain level of service.
An audit revealed residents of unincorporated areas ended up having to wait 17 percent longer — a minute more — for deputies to respond to their 9-1-1 calls, compared to people in contract cities and agencies.
At a tense board meeting, Supervisor Gloria Molina accused Baca of “stealing” from unincorporated areas to serve contract cities and agencies.
Baca restored the patrols by pulling dozens of deputies out of gang enforcement and other units and sending them to monitor unincorporated areas.
Speaking of audits, wasn’t there going to be some kind of audit of the LASD budget when this whole thing came up a month or so ago? Or did we all just get tired and forget about that? (I’m just curious.)
MORE BAD PRESS FOR PASADENA PD AROUND THE TRAGIC DEATH OF KENDRIC MCDADE
The Pasadena Star’s Brian Charles continues to vigorously report on this hydra-headed story of alleged Pasadena Police misconduct, misadventure and, in the case of Kendric McDade, a series of tragic mistakes—or worse. Here’s a clip from the latest sad wrinkle.
In the final moments of his life, Kendrec McDade was handcuffed and “began to twitch” on the ground after being shot by two Pasadena police officers, according to a civil rights lawsuit filed Tuesday in federal court.
McDade, a onetime standout football player at Azusa High School, tried to talk to officers as he lay dying, the lawsuit reads.
Instead, Pasadena police officers left McDade handcuffed in the street late Saturday night “for a protracted period of time without administering first aid,” the lawsuit filed by McDade family attorney Caree Harper reads.
The 19-year-old Citrus College student died later at Huntington Memorial Hospital.
Pasadena police spokeswoman Phlunte Riddle denied that McDade was left to die, but would not comment on the specifics of the case.
Named as defendants in the lawsuit are Pasadena police Chief Phillip Sanchez, Officer Mathew Griffin, Officer Jeffrey Newlen and detective Keith Gomez. It seeks unspecified damages.
Read the rest. And note that off to the right side of the story there are links to Charles’ other stories.
ERICA AGUILAR OVER AT KPCC reports that one of the officers involved investigating the McDade shooting is already being investigated for a hefty string of allegations of misconduct.
Here’s a clip from her story:
Pasadena’s police chief said he’s investigating two officers on accusations that they intimidated suspects and witnesses. One of those officers is a detective investigating the officer-involved shooting of Kendrec McDade.
Pasadena police shot and killed 19-year-old McDade in March after they said he reached for his waistband. Police say they thought he had a gun because of a false emergency call, but McDade was not armed. Keith Gomez, a corporal with the Pasadena department, is looking into the incident.
Last week the Pasadena chapter of the NAACP filed a complaint with the police department alleging that Gomez intimidated a suspect and witnesses and manufactured evidence in a 2006 murder case he investigated.
“Sometimes officers may do things that are inappropriate,” said Joe Brown, the chapter president, “and there appears to be sometimes patterns that certain officers are using that are really going over the line.”
The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman, as a majority of the justices expressed reservations about the Defense of Marriage Act.
On the second day of intense arguments over the volatile issue of same-sex marriage, Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.”
That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.
If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody.
All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal protection principles rather than on the limits of federal power.
Justice Ruth Bader Ginsburg, for instance, said the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”
David Souter and David Savage of the LA Timesalso think that the liberal justices and Justice Kennedy are in favor of striking down DOMA. Here’s a clip:
The Supreme Court wrapped up a second day of arguments on gay marriage, as Justice Anthony M. Kennedy and the court’s liberal justices appeared headed toward striking down the part of the Defense of Marriage Act that denies federal benefits to legally married gay couples.
Kennedy repeatedly said the states, not the federal government, have the primary role in deciding who is married. The question is “whether the federal government has the authority to regulate marriage,” he said.
Meanwhile, the court’s four liberal justices said the 1996 law is flawed and discriminatory because it treats married same-sex couples differently than other married couples.
Justice Ruth Bader Ginsburg said she too found the discrimination troubling. Some couples can have “full marriage” under the law, but others who are gay are left with “skim-milk marriage,” she said.
Justice Sonia Sotomayor said the law creates two classes of married couples. “You are treating married [gay] couples differently,” she said. “You are saying that New York’s married couples [who may be gay] are different than Nebraska’s,” she said, even though both are legally married under state law.
She questioned whether the government “can create a class they don’t like — here homosexuals –and … decide they get different benefits on that basis.”
The ATLANTIC WIRE has a transcript of Wednesday’s hearing that is nicely laid out so your eye can skip over the less interesting parts, in order to read and assess what the SUPREMES said for yourself.
PROP 8 CHALLENGER ATTORNEYS DAVID BOIES AND TED OLSON AFTER TUESDAY’S HEARING
It is still something of a miracle that Constitutional attorneys David Boies and Ted Olson—who fought against each other in Bush v. Gore—have been the lawyers who made this case against Proposition 8 possible.
Here’s their post hearing press conference.
Their clients, Sandy Stier, Kris Perry, Jeff Zarrillo and Paul Katami spoke as well— along with Kris and Sandy’s sons. It is hard to understand how anyone could object to their marrying each other. Very, very hard.
Here, as promised, are a couple of the more intriguing essays and reports on Tuesday morning’s hearing on the constitutionality of California’s Proposition 8.
DOMA—the Defense of Marriage Act case—is Wednesday.
WHAT ABOUT THE CHILDREN? PROP 8 AND PROCREATION
Amy Davidson from the New Yorker focuses on the fertility issue—or whatever it was that Prop 8 attorney, Charles Cooper was nattering on about regarding fertility and marriage.
Here’s a clip:
This is what we’ve come down to: a lawyer arguing, before the Supreme Court, that a ban on same-sex marriage should be upheld in the interest of discouraging elderly heterosexual men from cheating on their similarly aged female partners with younger women who might get pregnant. At least, that is what Charles Cooper, the lawyer for the proponents of California’s Proposition 8, seemed to be saying in his very odd exchange with Justice Elena Kagan. She had pointed out, amid his talk of the “historic traditional procreative purposes” of marriage, that infertile couples have every right to marry.
JUSTICE KAGAN: If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile, and the traditional—
JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
MR. COOPER: Your Honor, society’s—society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that…
His thought was interrupted by an exchange between the Justices, in which Scalia made a joke about Strom Thurmond—presumably referring to his marriage to a twenty-five-year-old when he was sixty-eight, and not to the daughter he fathered, at the age of twenty-two, with a woman whom it was, at the time, illegal for him to marry in his home state of South Carolina. And then, back to Cooper:
MR. COOPER: Very few men—very few men outlive their own fertility. So I just—
[EDITOR’S NOTE: Why, why, why did no one ask Mr. Cooper at this juncture if postmenopausal women should be forbidden to marry? Why??? A glorious opportunity, lost, LOST, I tell you!)
JUSTICE KAGAN: A couple where both people are over the age of 55—
MR. COOPER: I—
JUSTICE KAGAN: A couple where both people are over the age of 55.
MR. COOPER: And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity…. It’s designed, Your Honor, to make it less likely that either party to that—to that marriage will engage in irresponsible procreative conduct outside of that marriage. Outside of that marriage.
Read on. Please, read on. (How can you resist? I mean, really???!)
ONLY SCALIA AND ALITO SEEMED TO CONTINUE TO BACK PROP 8, SAYS UCI LAW SCHOOL DEAN ERWIN CHEMERINSKY
Oh, may he be right! Maura Dolan at the LA Times has the story on Chemerinsky’s opining on the Supremes possible opining. (Plus some counter opining by Prop. 8 advocates.)
Here’s a clip:
One leading law professor said he saw little support on the U.S. Supreme Court for keeping Proposition 8, California’s ban on gay marriage.
Erwin Chemerinsky, dean of the law school at UC Irvine and a constitutional law professor, said a reading of the transcript showed that several justices were particularly concerned about standing, especially Chief Justice John Roberts and Justice Ruth Bader Ginsburg.
If the court dismisses the appeal on standing, the ruling by a federal district judge would probably stand.
“There might be a majority to leave the district judge’s opinion in place,” Chemerinsky said. “On the other hand, it is also possible the court could reach the merits. Only two justices—Samuel Alito and Antonin Scalia—seemed clearly supportive of Proposition 8.”
Gay marriage foes expressed confidence that the U.S. Supreme Court could uphold the state’s ban on same-sex unions after hearing arguments Tuesday.
“I think we are going to win this case,” Andy Pugno, lawyer for Proposition 8 campaign, said. “We definitely represented the winning case today and the justices asked good thoughtful questions and we were able to say everything that we wanted to get in front of the court today.”
Pugno, counsel for Protectmarriage.com, said he was unimpressed by the arguments in favor of lifting the voter-approved ban on same-sex marriages in California.
Chemerinsky thinks that both Kennedy and Roberts are swing votes, not just Kennedy. I tend to agree—both based on pre-hearing logic re: Roberts and his legacy, and based on Roberts’ behavior in Tuesday’s hearing. Let’s hope they both swing with the tide of history.
TRANSCRIPT AND AUDIO FOR TUESDAY’S HEARING….GRAND THEATER (WITH ENORMOUS AMOUNTS AT STAKE)
If you’d like the full transcript of Tuesday’s hearing plus the audio, NPR has it here.
Charles Cooper, who is attorney for Prop 8, was first up. Cooper is clearly an extremely capable attorney. But he sounded nervous in the beginning, thus was a little wordier than might be optimum and got continually interrupted by impatient and keyed up justices, both on the liberal and the conservative side of the matter.
But then Cooper and the justices all seemed to settle down and the exchanges became legally substantive—even if sometimes a bit odd (as with the procreation, women over 55 section excerpted in the New Yorker story above).
Here are a couple of the more interesting moments:
JUSTICE SOTOMAYOR: Outside of the - outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?
MR. COOPER: Your Honor, I cannot. I do not have any — anything to offer you in that regard. I think marriage is -
JUSTICE SOTOMAYOR: All right. If that - if that is true, then why aren’t they a class? If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing? Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
MR. COOPER: No, Your Honor, we certainly are not. We — we are saying the interest in marriage and the — and the State ‘s interest and society’s interest in what we have framed as responsible pro - procreation is — is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.
But to come back to your precise question, I think, Justice Sotomayor, you’re probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court’s standard and - and traditional tests for identifying suspectedness.
The — the class itself is — is quite amorphous. It defies consistent definition as — as the Plaintiffs’ own experts were — were quite vivid on. It — it does not — it — it does not qualify as an accident of birth, immutability in that — in that sense.
And then a classic moment in Scalia-osity in which the good justice musingly wondered why he should have to rule on a social issue that he alleged is “newer than cell phones.”
JUSTICE SCALIA: ….Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future….
AND IN OTHER NEWS – LAPD OFFICER IS GIVEN 1.2 MILLION IN RACIAL HARASSMENT LAWSUIT
On Tuesday, the verdict came in for LAPD officer, Earl Wright, who described harrowing harassment by his supervisor and some other officers at the department’s Central division.
…The testimony by officers during the trial showed Wright “willingly participated in some of the inappropriate behavior and banter,” said Lt. Andy Neiman, a spokesman for the department.
The jury, however, seemed to reject that notion.
In reaching their decision, jurors noted in written records that the LAPD’s procedures for handling harassment claims such as Wright’s were “ineffective,” Smith said.
Beck said in his written response that the department had learned lessons from the Wright case and “has used its experience from the allegations revealed in this case to more aggressively monitor workplace environments and investigate allegations of misconduct.”
Indeed, cop-on-cop accusations of harassment, retaliation and discrimination have bedeviled the LAPD for years, and cost tax payers tens of millions of dollars in verdicts and settlements.
Wright’s verdict is the second seven-figure payout for the city in as many weeks. Last week, the City Council voted to approve a $1.25-million settlement with two lesbian officers who claimed they had been subjected to sexual harassment by their supervisor.
That’s nearly 3 million in harassment settlements in two weeks.
FOXLA News notes that Wright is still working for the LAPD—now at the department’s training division—and still loves his job.