Leonard Link

A Polyphonic Discovery - Madsen's Preludes & Fugues

While browsing in J&R Music during an all-label sale, I came across a 2-CD set on the import label "2L" of 24 Preludes & Fugues for Piano, Op. 101, by Trygve Madsen, a Norwegian composer born in 1940.  This looked intriguing, so I bought it and it sat on the shelf for a while, but now I've had a chance to listen to it, and it is FANTASTIC!  Madsen, who has made his career as a pedagogue as well as a composer in Norway, is a serious student of counterpoint, but he also has a sense of humor and likes to play jazz piano.  These preludes & fugues in all the keys incorporate some influences from jazz, but his main influences are the leading 20th century composers of serious piano music, such as Prokofiev, Shostakovich.  I also hear some echoes of Hindemith's great Ludus Tonalis, a wonderful cycle of polyphonic piano writing.

In any event, this is an extraordinary piece of music, and very well played by pianist Jens Harald Bratlie.  The recording is excellent, an SACD - although my system is not set-up to decode that, so I was playing the normal CD layers on the discs.  The total length of the cycle is about 100 minutes.  This is a very worthwhile investment for anybody who loves the Shostakovich Preludes & Fugues - or, indeed, anyone who loves J.S. Bach's Well-Tempered Clavier.  A marvelous discovery.

Naxos Launches Ives Song Series

Naxos, the super budget classical label that is apparently attempting to record and make available the entire corpus of classical music under its aegis, has issued the first volume of a project to record all the song of Charles Ives (1874-1954), the iconoclastic American composer.  This is not the first time the complete Ives song corpus has been attempted.  Albany Records issued what was billed as a complete series of the songs several years ago, using four singers, each with his or her own accompanist, arranging them in chronological order to the best that could be determined.  It was an admirable effort, the singers were all expert, but the discs were difficult to listen through because a chronological series did not necessary make an effective musical presentation.

Now we get a different organizing principle.  This series has been done in collaboration with the Yale University music department, a logical connection since Ives was a proud alumnus of that institution and studied composition under one of the leading musical pedagogues of his day, Professor Horatio Parker.  Many of the early songs were written for Parker's class.  But I fear a grievous mistake has been made, somewhat along the lines of the Albany series - that is, to use an arbitrary organizing principle rather than arrange the songs into an artistically satisfying sequence.  This new series will present them in alphabetical order by title.  This first volume begins with the only song with a numerical title, "1,2,3" and continues through the A's, B's and C's, culminating in Cradle Song.  This means a hodgepodge of genres and styles and vocal types (13 different singers appear on this first disc, which runs close to 75 minutes).  Among the accompanists are four different pianists, an organist, and a string quartet (and I did hear some percussion at one point, not credited on the inlay card.)

Another mistake is not to provide texts.  Naxos has taken in recent years to omitting texts from their booklets, instead in many cases directing the consumer to their website for a pdf file with texts.  In this case, that has been handled badly.  There are 29 songs on this disc, but the pdf file on the website has only "selected" lyrics, about three pages worth, leaving the listener without texts for most of the songs.  This is sheer laziness.  While there may be a handful of texts that would present copyright issues, the vast majority of the Ives song texts are in the public domain, as the overwhelming bulk of these songs were written by the mid-1920s and many of them to texts that were either by the composer or his wife or of older vintage. 

All would be forgiven were this an extraordinarily good musical performance, but the singers are quite inconsistent in quality, and the overall tenor of the performances is on the slow and droopy side.  Perhaps that just has to do with the sequence incidentally created by programming in alphabetical order, but I was not overly enthusiastic after listening to the first disc, which was recorded in Sprague Hall at Yale about three years ago.  (Wonder why it took so long to release?  Perhaps they recorded the whole series on speculation and then tried to market it, taking this long to get Naxos on board, and then having to slot it into Naxos's crowded production and release schedule.  Naxos is the ONLY major classical label in business today in the world, to judge solely by number and range of releases: at least a dozen new releases every month, next to which the old majors look pitiful....)

This is, for me, a rare Naxos disappointment, as most of their releases are of high artistic quality and are also very well presented.  I hope the first disc proves the weakest link in the series.

Del Tredici's "Final Alice" Re-emerges at last on CD

What have they been waiting for?  At long last, Universal Classics has issued a compact disc release of David Del Tredici's fantastic operatic concert piece for soprano, 'folk group' and orchestra, "Final Alice," a madcap setting of the last two chapters of Lewis Carroll's Alice's Adventures in Wonderland.  It seems like they've been sitting on this item forever.  The work, premiered by Georg Solti and the Chicago Symphony in 1976 and recorded in 1980 with Barbara Hendricks as the soprano soloist and text-speaker, had a brief Lp release during those last few years before the advent of compact discs, and then pretty much disappeared, at least from the US recording marketplace.

I acquired the Lp when it was first issued and loved the piece -- my introduction to the wonderful musical imagination of David Del Tredici.  But then CDs displaced Lps, and ultimately I lost track of it, hoping it would reappear in the new format.  And hoping... and hoping....  There was a Japanese CD release that eluded me, but now Universal's Australian branch has issued it on their budget-priced Eloquence label, and anybody in the world with an internet connection and a credit card can buy it rather inexpensively from the Australian classical website, www.buywell.com. 

Hearing it on a well-mastered compact disc is a revelation, since the medium is capable of a far wider dynamic range and a better balance of voice with orchestra than the old Lp.  The medium also points up some shortcomings in Hendricks' singing of the more challenging high-flying lines, making one wish for a new recording by a soprano with a more open and secure top range, but Hendricks does an excellent job most of the time, her narration projecting just the right mix of naive wonder and sophistication in alternation.  The richly colored orchestration benefits from the ability one has to play back a CD at a nice, full volume without the affliction of surface noise and the dreaded "inner groove distortion" of Lps.

And the piece itself holds up wonderfully well thirty years after it was written.  Del Tredici was then already launched on his neo-romantic phase, so there are plenty of lush sounds and achingly-beautiful melodic lines and harmonizations here.  But there is also plenty of modern grit as well, when the story calls for it.  The portions set in Alice's wonderland dream are as bizarre and illogical as the story itself, but when she wakes up, the shift into a neo-romantic, Victorian style is accomplished seamlessly, down to the signature ending (literally, as Hendricks intones the numbers 1 to 13 in Italian against a ghostly orchestral accompaniment, 13 being the translation of the composer's surname). 

What is odd, of course, is that Universal has not seen fit to release this directly through its US branch, where it would make a logical offering on the "original masters" series.  I have heard that there are plans for a concert performance in the near future by Leonard Slatkin and the National Symphony of Washington, D.C.  One hopes that leads to a modern recording, not least because "Final Alice" was truncated slightly for the Chicago recording -- the time limits of Lps, you see -- and it would be great to get a complete recording at last!  In the meantime, however, this CD release serves nicely as a way to get acquainted (or re-acquainted, as the case may be) with a major American work of the last century....

Federal Court Preliminarily Bars Enforcement of St. Louis Anti-Handbilling Law During PrideFest Events

Ruling at the instance of a religious group calling itself “Apple of His Eye, Inc.,” and two of its members, U.S. District Judge Henry A. Autrey (E.D.Mo.), signed a preliminary injunction on June 24, banning enforcement of a St. Louis city ordinance that provides that “ no person shall parade, exhibit or distribute any advertisement, circular or handbill in or adjoining any public park, place or square.” The plaintiffs were particularly interested in distributing anti-gay religious handbills in Tower Grove Park during the annual PrideFest events scheduled for June 28-29. Apple of His Eye, Inc. v. City of Saint Louis, Missouri, Case No. 4:08-CV-00592 HEA (June 24, 2008).

According to the complaint filed with the court, Steve Cohen and Alan Butterworth had attempted to distribute such flyers at PrideFest in 2006, but were threatened with arrest by police if they did not cease their distribution when a PrideFest official complained to the police officers on duty at the event.  The Alliance Defense Fund, which litigates on behalf of individuals seeking to vindicate their religious free exercise rights, represented them in seeking the injunction.

Judge Autrey found that the plaintiffs had shown a probability of success on the merits of their claim that the city’s ordinance was unconstitutional.  He observed that a city park “is a traditional public forum and therefore open to all who may enter for peaceable purposes,” such that the city’s blanket prohibition is probably unconstitutional.  Furthermore, Autry found that failure to issue the preliminary injunction would cause irreparable injury to the plaintiffs, since a loss of First Amendment free speech rights, however brief, is not really compensable in money damages.

As to balance of harms, “While there may be attendees at PrideFest 2008 who may also object to Plaintiffs’ distribution of religious literature or expression of religious views, their ‘injury,’ namely, the suffering of viewpoints with which they may disagree, is outweighed by the restriction of Plaintiffs’ First Amendment right to express those views in a public forum,” wrote Autrey. “The very essence of the Spirit of the First Amendment embraces the tolerance of various and even divergent viewpoints and opinions.  As such, the minimal imposition upon the PrideFest attendees, who are themselves enjoying the protections of their first amendment rights, cannot overcome the irreparable harm suffered by Plaintiffs.” Autrey also found that allowing the plaintiffs to carry out their expressive activities in the park during PrideFest would not seriously impinge on the public interest, if any, sought to be advanced by the ordinance, “as long as the City retains the authority to enforce other Code provisions which are content-neutral reasonable time, place and manner restrictions, in order to maintain public safety and order.”

The plaintiffs had also alleged that there was actually an unwritten policy, by which police officers at their discretion allowed some activity banned by the ordinance to go on in the park, and they challenged this policy as well, but Judge Autrey found that the plaintiffs had not shown that such a policy existed or had been used to prevent plaintiffs from expressing their views.  Autrey opined that enjoining enforcement of the ordinance would be sufficient to protect the plaintiffs’ first amendment rights.  In framing his order, he directed that the city instruct the police officers on duty about his injunction, and also that it inform the PrideFest organizers prior the event that the plaintiffs’ “distribution of religious literature and/or expression of religious beliefs” in the park were not, “in and of themselves,” a basis for having law enforcement authorities take action that would restrict those activities.  He also emphasized, however, that the city had the right to enforce its content-neutral policies, with the exception of a provision that requires anybody distributing handbills to take responsibility for their proper disposal within 100 feet of the distribution point.

Judge Autrey’s ruling is, on its face, an appropriate application of First Amendment principles.  It is hard to understand how such a sweeping ordinance restricting freedom of speech in public meeting places in St. Louis could have been enacted and allowed to stand for so long.  The citation in the court’s decision includes the date of 1994, but it is unclear whether that is merely the publication date of the latest version of the City Code provision on point or the date of enactment.  In any event, this provision seems to be an anachronism in light of the expansive First Amendment rights that the federal courts have recognized concerning political and religious speech by private actors in public spaces.

Legislative Progress in NY - Amendments to the Domestic Violence Law

The New York State legislature has completed work on amendments to the Family Court Act that will finally open the Family Courts to non-traditional families (including LGBT families) for purposes of interventions on domestic violence.  We recently reported on a case where the court lacked certain authority to intervene in a messy domestic violence situation because state law did not recognize any legal relationship between two lesbians living together in what is clearly an "intimate relationship."

Although it is unclear that the bill passed by the legislature would necessarily resolve the particular problem presented by the facts in that case, it will go a long way towards making Family Court more available for LGBT people experiencing domestic violence concerns with a partner.  The bill, A11707/S8665, passed both chambers at the end of the session on June 24, and is now pending before Governor Paterson for approval.

The significant change it would make would be to expand the definition of the phrase "members of the same family or household," a phrase that is critical in the law in defining the scope of jurisdiction for the courts to issue orders of protection against harassment, stalking, criminal mischief, etc.  Under existing law, this phrase refers to

a - persons related by consanguinity or affinity; b - persons legally married to one another; c - persons formerly married to one another; d - persons who have a child in common regardless of whether such persons have been married or have lived together at any time.

The amendments approved by the legislature this week would make two changes.  First, the following language would be added to part c of the definition: "regardless of whether they still reside in the same household."  Second, and more importantly for non-traditional families, a new subsection e would be added: "Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of wehther such persons have lived together at any time.  Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.  Neither a casual acquaintance nor ordinary fraternization between two indviduals in business or social contexts shall be deemed to constitute an 'intimate relationship.' "

If this is signed into law by the governor, New York will join the growing number of states that have recognized that traditional definitions of family based only on marriage or blood relations are inadequate in light of the realities of contemporary family life in our state.  The legislature is to be congratulated for taking this step to modernize our family law.

NY Philharmonic Summertime Classics Begins - Moscow on the Hudson

Tonight the NY Philharmonic kicked off its brief Summertime Classics series with its Moscow on the Hudson program.  Bramwell Tovey led performances of Shostakovich's Festive Overture, Op. 96, a selection of scenes from Prokofiev's Romeo & Juliet ballet music, and Rachmaninoff's 2nd Piano Concerto, with the young Korean pianist Joyce Yang, who already made a big impression a few years ago in her debut with the orchestra.  This program will be repeated tomorrow night.

It was a good launch for the series, a collection of pieces that worked well together, although one could have hoped for slightly more adventurous programming.  One of the interesting features of the Summertime Classics series, since Tovey inaugurated it five years ago, has been the opportunity to hear some lighter classical music a bit off the beaten repertory path, but tonight we had pieces that are central to the regular concert repertory of the orchestra and have all been played at subscription concerts in recent seasons, so that was a bit of a letdown.  But it does not detract in any way from the success of the program heard on its own.

Tovey is a very exciting conductor in this repertory, and the Shostakovich opened things with a big splash.  Then he came out and did some of his entertaining patter to introduce the Prokofiev, providing some context for the scenes he had selected and then leading the NYP players through a very effective rendition.  The short suite provided nice contrasts and a capsule view of the ballet.

The Rach 2 is quite the warhorse of a piano concerto, but it always seems fresh when as thoughtfully played as it was on this occasion.  I found myself reflecting on how tempi have changed.  Half a century ago, this concerto would have been played much faster, as recordings from the 1950s will show.  Tempi in romantic music have generally gotten slower, and there were times I was thinking that we were all really wallowing in ultra-lush Rachmaninoff.  The music can take it, it's sturdy stuff and the big tunes just keep coming, one after another.  Rachmaninoff had a genius for writing big tunes, even if some of the filler between them is more gorgeous than substantive, and at times a bit repetitious, but the piece as a whole really holds the attention and gets the blood rushing at the big moments.  Joyce Yang has a nice, big technique sufficient for this work, but more importantly she has good musical instincts and plays with restraint -- actually, more restraint than Tovey and the orchestra showed on this occasion, and there were times when I felt perhaps he was still getting reacquainted with the acoustic of this hall, which is very live, especially when full of audience members, and the brass and low strings really have to be restrained a bit by the conductor to give the soloist a fair hearing.  I suspect balances will be a mite better tomorrow night as Tovey adjusts and gets feedback from orchestra staff.

The Rach 2 ended with a big bang, and the audience response was sufficiently effusive to justify an encore from Ms. Yang, so we had a very impressive performance of Liszt's transcription of a Chopin song, "My Joys." 

I'm looking forward to the remaining programs, a European smorgasbord with showpieces for violin and orchestra played by James Ehnes, the excellent Canadian violinist, and a final concert collaboration with a band in American marches together with some Copland and a new piece specially commissioned from Tovey himself, in his composerly-capacity, which should be quite interesting.  Anybody in town the next few weeks looking for some delightful orchestral entertainment should head over to the Avery Fisher box office (or the nyp website) to see if tickets remain.  It was rather full tonight, but I spotted a few empty seats here and there.  This series is lots of fun, and the orchestra is in fine form.

Two things I noted that were different from last year:  First, instead of crowding the stage with plants and fancy backdrops, they just used some lighting effects to give the stage a different feel and so didn't crowd the musicians or put a barrier between them and the audience.  Second, we seemed to have the A list orchestra tonight.  I noted last year that many of the principals and other regulars were missing and there were lots of strange faces on the stage -- as if it was a substitute for the NY Philharmonic.  That was not the case tonight.  A few principal players were missing, but most of the principals were there, the regular concertmaster and leading string players all in place, and most of the usual solo winds, so it was the real thing, not some ersatz NY Philharmonic composed heavily of substitutes that performed at last year's series.... but let's see how much of this carries through the remaining two concerts...

Final observation: Walking home afterwards, I noted that the new Circuit City store is readying for their grand opening in the space vacated by Tower Records a block north of Lincoln Center.  I noted a bad judgment call already - the store hours listed by the window indicate they plan to close at 9 pm every night.  That's not in sync with the neighborhood.  Across the street Barnes & Noble is open late every night, shows let out from Lincoln Center until rather late most nights of the week, and they are in the midst of a residential neighborhood, not a commercial district with office buildings emptying out and deserted streets.  The Lincoln Square area is alive with foot traffic until after 11 most nights and later on weekends.  Closing at 9 pm is not a good business decision -- if perchance any Circuit City execs chance to see this....

Missouri Supreme Court Affirms 22 Year Sentence for HIV+ Man on Sex Charges

The Supreme Court of Missouri unanimously ruled en banc in State of Missouri v. Wilson, 2008 WL 2501975 (June 24, 2008), that there was sufficient evidence to support the conviction of James Wilson on charges of statutory rape, statutory sodomy (digital insertion) and reckless exposure to HIV, and that St. Louis City Circuit Judge Joan M. Burger did not err in excluding certain evidence that the defendant sought to use to impeach the victim as a witness.

According to the opinion for the court by Chief Justice Laura Denvir Smith, James Wilson, who learned he was HIV+ in 1998, was living with his girlfriend and her four daughters.  In 2003, he began having sex with D.B., one of the daughters, who was then 15.  He did not disclose his HIV status to her and did not use condoms.  Their activity included vaginal intercourse, digital penetration, and oral sex.  In the summer of 2004, D.B.’s mother was hospitalized.  While she was in the hospital, D.B. discovered at home a medical record showing that Wilson was HIV+, and the next day went to visit her mother in the hospital and learned that her mother was also HIV+.  She then told her aunt that Wilson had been having sex with her, and her aunt called the police. 

Wilson fled when he heard that the police were coming, but was subsequently apprehended, and before the police officer mentioned D.B.’s name, Wilson declared that she was lying and he had never touched her.  He was then arrested and charged, pled not guilty, and was convicted at trial.   Circuit Judge Burger sentenced him to 15 years on the first statutory rape count and seven years on each remaining count of rape, sexual assault, and exposure to HIV, with the various seven-year sentences to be served concurrently with each other but consecutively to the fifteen year sentence, for a total of 22 years.  Wilson’s appeal was transferred to the Supreme Court directly to address his argument that the exclusion of certain impeachment testimony violated a recent decision by the court, State v. Long, 140 S.W.3d 27 (Mo. 2004). 

In Long, the court held that a defendant in a sex crime case was entitled to have introduced evidence that the victim had previously falsely accused others of sex crimes, in order to impeach her honesty.  In this case, Wilson contended that he should have been allowed to introduce evidence that D.B. had once lied about the circumstances under which she had caused damage to the family car while using it without authorization.  The Supreme Court found the cases distinguishable. 

Chief Justice Stith wrote, “Contrary to Mr. Wilson’s contentions, the statements D.B. made to her family do not amount to prior false allegations as contemplated in Long.  In Long, which was a sexual assault case, the trial court excluded defendant’s evidence that the victim had made three prior false allegations to the police that specific individuals had physically or sexually assaulted her.  These types of prior false allegations, which implicate a specific individual in similar conduct and were made to investigating authorities, were found in Long to be sufficiently probative of the victim’s veracity that their value in weighing the victim’s credibility in making her current allegations outweighed the prejudice allegedly resulting from their admission.  Here, unlike in Long, the witness did not accuse anyone other than an unnamed ‘nobody’ of causing the car accident, and D.B. did not make a false report about the accident to any formal authority.  Moreover, the subject matter of the prior allegation was dramatically different than the charged offense.” The court concluded that “the relevance of this incident to D.B.’s reputation for truth and veracity was scant, and the trial court acted within its discretion in excluding this evidence.”

The court rejected Wilson’s argument that D.B.’s testimony at trial about the sexual conduct she claimed had occurred was too vague and non-specific as to particular dates to support his conviction, finding there was no authority to support the contention that a victim has to remember precise dates in order to be credible enough to support a conviction. 

In challenging his conviction for reckless exposure of D.B. to HIV, Wilson argued that he had always withdrawn before ejaculation and thus presented no danger to the girl.  The court rejected this argument.  Missouri’s statute, Sec. 191.677.1, provides: “Evidence that a person has acted recklessly in creating a risk of infecting another individual with HIV shall include, but is not limited to, the following: (a) The HIV-infected person knew of such infection before engaging in sexual activity with another person, ... or purposely causing his or her semen, vaginal secretions, or blood to co me into contact with the mucous membranes of non-intact skin of another person, and such other person is unaware of the HIV-infected person’s condition or does not consent to contact with blood, semen or vaginal fluid in the course of such activities.”  Chief Justice Stith writes that the state was required to prove two essential elements: first, that Wilson knew he was HIV+ at the time, and, second, that D.B. was unaware of this fact.  These points were clearly established by the testimony at trial.

“Contrary to Mr. Wilson’s contentions,” wrote Stith, “the state does _not_ have to prove that he purposely caused his semen to come into contact with D.B.  The statute is unambiguous that one who knows he is HIV positive is reckless if he has sexual intercourse with another without making that other person aware of his HIV positive status.”  Stith noted that the state had introduced evidence at trial “that HIV can be transmitted by sexual fluids even if the actor withdraws prior to ejaculation. . .  While the evidence regarding withdrawal would have been relevant to the jury’s determination of recklessness, the statute does not contemplate that withdrawal is in itself a complete defense.  The evidence presented was sufficient to support his conviction under section 191.677.”

Ohio Appeals Courts Rule in Custody Disputes Involving Lesbian Moms

Two intermediate appellate courts in Ohio have ruled in custody disputes involving lesbian mothers. In one, In the Matter of J.D.F., a minor child, 2008-Ohio-2793, 2008 Westlaw 2350253, from Franklin County on June 18, the court refused to set aside a joint custody agreement that the birth mother sought to avoid after breaking up with her partner. In the other, Page v. Page, 2008-Ohio-3011, 2008 Westlaw 2469176, from Clark County on June 20, the court upheld a trial judge’s decision to switch custody from the lesbian mother to her ex-husband, based on the court’s determination of the best interests of the children.

In the Franklin County case, the couple, identified by the court as D.F. and T.F., had a child together in 1997 as a result of anonymous donor insemination with D.F. as the birth mother. When the child was four years old, the women submitted a statement, called an "Agreed Entry," to the local domestic relations court, under which they agreed to "co-custodial status" of their child, and that should any future dispute arise, neither could rely upon any biological or legal connection to the child to gain any advantage over the other, according to the court of appeals opinion by Judge Peggy Bryant. This Agreed Entry stated that D.F. and T.F. were to be treated legally as equal parents of the child, "the same as they would be treated under the law if they were any other two unmarried parents of a child."

Three years later, D.F. and T.F. ended their relationship, and T.F. filed a motion for contempt with the domestic relations court, complaining that D.F. was refusing to permit visitation with the child. The trial judge appointed a "guardian ad litem" for the child, who recommended that D.F. be allowed to visit with the child. D.F. filed a motion for a declaratory judgment, seeking to have the court declare that the "Agreed Entry" was null and void. The trial court referred this motion to a magistrate for an advisory ruling. The magistrate concluded that T.F. was a suitable person to have visitation rights and that the Agreed Entry was an enforceable court order. The trial judge adopted the magistrate’s decision, and denied D.F.’s motion for a declaratory judgment, ordering that T.F. be allowed visitation with the child.

D.F. appealed to the court of appeals, which refused to rule on the merits of the appeal, finding that a motion for declaratory judgment was an inappropriate procedural device to raise the issue. According to Judge Brady, the motion was really an attempt to attack the validity of the Agreed Entry, which could only have been done by appealing the domestic relations court’s original order approving it within a short period of time after the order was made. Ultimately, the court of appeals decided that the trial judge should have dismissed the motion for declaratory judgment rather than ruling on the merits and denying it – resulting in the same outcome. The result is that the trial court’s order adopting the magistrate’s conclusion that T.F. should have visitation rights with the child stands.

The Clark County case is a more traditional custody dispute between a lesbian mother and her ex-husband. The Pages were divorced in 2000, and the domestic relations court then ordered "shared parenting" between the parents of their two sons, age 8 and 6. Two years later, the mother was designated residential parent of both boys by agreement of the parties, and the father was granted visitation rights and ordered to pay child support. In 2006, the father moved to be designated residential parent, claiming that circumstances had changed justifying a reconsideration by the court of the best interests of the children.

The changed circumstances were that the mother had become romantically involved with a woman from West Virginia, had a commitment ceremony with her, and on very little notice moved with the two boys to live with her partner in West Virginia. When father filed his motion seeking a change of residential custody, the boys were 14 and 12, and the domestic relations judge found based on the hearing record that the boys had "a poor relationship" with their mother and her partner.

Further, the court found that the mother’s partner "has not developed the social skills necessary to enable her to effectively interact with young men of this age." Both boys had been in counseling since the women established their relationship, the older for "anger management issues" and the younger for "depression issues." The domestic relations judge concluded, "The credible evidence in this case suggests that both of the children’s issues for which they were in counseling were primarily a result of the environment in which they were living at their mother’s."

The trial judge concluded that these circumstances, taken together, were a substantial enough change in circumstances to warrant reconsidering the custody award, and to justify awarding residential custody to the father.

First addressing the question whether this was a substantial enough change of circumstances to make it appropriate to reconsider the earlier custody order, Judge Thomas J. Grady wrote for the court of appeals, "A parent’s conduct in engaging in a homosexual relationship with another, consenting adult has no relevance to allocation of parental rights and responsibilities, absent proof that the parent’s relationship presently has an adverse collateral impact on the hcild or children involved.. . . There was competent, credible evidence presented to the domestic relations court that, as a collateral result of [the mother’s] relationship with [her partner], including [her partner’s] conduct, both [boys] have experienced personality development disorders that are neither slight nor inconsequential." Thus, the court of appeals found no abuse of discretion in the domestic relations court’s determination of a substantial change in circumstances.

Turning to the issue of "best interest of the child" which will determine which legal parent gets residential custody when it is disputed between them, Judge Grady noted that "the domestic relations court must find that modification is necessary to serve the best interests of the child and that the harm likely to be caused the child by a change of environment is outweighed by the resulting advantages" if a custody order is to be modified. Grady noted that the relevant statute also requires the court to interview the children to determine their preferences. In this case, both boys expressed the wish to live with their father, although the trial judge concluded that only the older boy was really mature enough to make such a choice.

The domestic relations court found that the boys had a good relationship with their father and their paternal grandmother, with whom their father was living, but that their mother "has become unable to maintain a positive relationship with her two children," complicated by the "relatively poor relationship" between the children and their mother’s partner. The court found that the mother had failed to adapt to the needs of her children as they grew older, and that the boys’ need for psychological counseling was a function of their home environment. The court expressed particular concern for the younger boy, finding that if he were "not removed from this environment, his depression will most likely worsen and his development will be stalled even greater than it already has been."

The domestic relations court resolved the best interest determination against the mother, and the court of appeals found that this was not an abuse of discretion, concluding, "Both boys are in a very important, formative phase of their development. For that reason, and on this record, the court could reasonably find that it is in their best interest that they live with [the father], and that the advantages to them of that change outweighs any apparent harm they might experience."

The mother had raised an additional argument, pointing out that the domestic relations court had relied on evidence that the younger son’s depression was due in part to his inability to make friends at school, which was attributed to local social disapproval of his mother’s same-sex relationship. She argued that allowing this to affect the decision violated her constitutional right to equal protection of the law.

Judge Grady acknowledged that the mother had a constitutional liberty interest in the custody of her sons. However, said the court, this interest is not absolute, and it rejected the mother’s attempt to invoke Palmore v. Sidoti, 466 U.S. 429, a 1984 U.S. Supreme Court case that ruled that social prejudice or disapproval may not be the basis of a custody decision. That case involved a Florida court’s decision to change custody after the mother entered into an interracial marriage, which the court found would disadvantage her children due to community disapproval.

Judge Grady found this case distinguishable from the Palmore case. "Unlike in Palmore," he wrote, "there is competent, credible evidence of a present and adverse collateral consequence to [the boys] arising from the fact on which the alleged classification is predicated, their mother’s same-sex relationship. Any protection afforded that alleged classification by the Equal Protection Clause cannot likewise shield that collateral consequence from a remedy the state is authorized to enforce in order to correct it. And, the state, in its role as parens patriae of children whose care, maintenance, and support are at issue in actions for divorce, has a legitimate interest in correcting, or at least avoiding, a present and adverse collateral consequence to the parties’ children that the court’s prior order created."

Judge Grady emphasized that peer pressures contributing to the younger child’s depression "were not the sole or primary reason" for the custody modification, which was mainly due to the mother’s "poor interpersonal relationship" with both boys and the likelihood their situation would improve if they were living with their father. The court concluded that the mother "cannot shield herself or the rights she was previously awarded from the court’s power to modify its prior order for these causes because she is engaged in a same-sex relationship from which those causes flow."

Delightful Settings of Hebrew Psalms from Germany

A Cologne-based group, Ensemble Shoshan, has produced an absolutely delightful album of Hebrew psalm settings on the Hanssler Classic CD label.  The album is titled "Ma'alot," which the booklet explains can be variously translated as "step," "degree" or "ascent."  The psalms that are sung on this album are numbers 120-134 and 139 in the Hebrew numbering, the "Psalms of ascent" that would be sung by pilgrims coming up to the Temple Mount in Jerusalem. 

Ensemble Shoshan consists of Waltraud and Raimund Rennebaum and Heike Zehe.  Waltraud sings and has composed most of the settings on the album, Raimund, her husband, provides keyboard accompaniment and has arranged the other instrumental parts, and also composed some of the settings.  Zehe plays the flute.  They are joined for the recording by Anselm Schardt, a cellist, Helmut Kandert, percussion, Tom Daun, celtic harp, and three additional singers, tenors Olaf Rosier and Torsten Ache and baritone Klaus Kolsch.

From exploring their website, www.shoshanim.de, I learn that they are not a Jewish group, but rather a German Christian group that is fascinated by the Hebrew liturgical texts and has made a deep study to absorb traditional Jewish musical idioms.  The compositions are original but strongly grounded in Jewish musical traditions, and are really quite lovely.  The booklet that comes with the CD includes complete translations, and they have also published their compositions in a songbook, also titled "Ma'alot."  This appears to be their first recording that has been issued by a major label with international distribution. 

Two prior recordings are mentioned in the booklet and on the website, but are only available by direct purchase from the group through bank money transfer, as they have not established any arrangement with a credit card service provider and do not care for the hassle of dealing with checks.  That makes them prohibitively expensive for purchase from the U.S., as I discovered when consulting my bank.  Perhaps they will conclude a licensing arrangement with Hanssler or some other label for the earlier recordings!

At any rate, I found these settings quite marvelous, and the performances are full of spirit, communicating the messages of the psalms most effectively.  I hope this recording, which I discovered through a magazine review, finds its audience and encourages many sequels. 

California Supreme Court Suit Seeks Invalidation of Anti-Marriage Initiative

A coalition of LGBT rights groups and law firms filed suit in the California Supreme Court on June 20, seeking to have a proposed initiative to ban marriage for same-sex couples excluded from the general election ballot this November.  Bennett v. Bowen is the name of the case, with California Secretary of State Debra Bowen sued in her official capacity, and the individuals whose names appear as proponents on the initiative named as real parties in interest.

Pre-election litigation against ballot measures is by no means unprecedented, although courts generally prefer to avoid deciding controversial questions unless they have to do so, and if the initiative is not approved by the voters, the court would never have to rule on its validity. But in their memorandum of law supporting the motion to stay voting on this measure, the petitioners have made strong arguments along two lines.

First, they argue, because of the significant impact that passage of this initiative would have on fundamental rights and equality guarantees of the California Constitution, as identified by the Supreme Court in _In re Marriage Cases_, 43 Cal.4th 757 (2008), its historic ruling ordering that same-sex couples be allowed to marry, it is really a revision, not a simple amendment. Under California constitutional procedures, the Constitution may be amended by the popular initiative process, but may not be revised through that process. Revision may only be undertaken through a more deliberative process involving each house of the legislature approving a proposed revision by a 2/3 vote followed by submission to the people, or a state constitutional convention, again followed by submission to the people.

The key question here is: what is a revision, and how is that distinguished from a mere amendment? A revision is a change affecting the "underlying principles" of the Constitution, and could be a revision because it is sweeping and wide-ranging, covering many different subjects, or because qualitatively it alters the "nature of our basic governmental plan." In this case, the proposed initiative appears on its face narrow in focus, stating simply that only the union of a man and woman will be valid or recognized as a marriage in California, but in light of the recent Supreme Court holding, the petitioners argue, it is actually a rather dramatic and far-reaching measure. This is because the court’s decision established two important points of constitutional law that would be altered by the initiative: that sexual orientation is a "suspect classification" under California constitutional law, and that the right to marry is a "fundamental right." By decreeing that marriages of same-sex partners would not be valid or recognized in the state, the initiative would in effect make an express constitutional exception to the equality guaranteed to LGBT people under the Constitution, and would also deprive them of a fundamental right at the same time.

This is not to say that the state constitution could not be amended to ban marriages for same-sex couples, but rather that because of the significant effect this would have on the existing structure of California constitutional rights, as described by the Court in the Marriage Cases, such a ban constitutes a "revision" rather than a mere amendment, and can only be achieved through the more deliberative process specified for revisions.

The petitioners argue that this proposal is unprecedented in California jurisprudence, to allow a simple majority vote of the electorate revise the state’s due process and equal protection guarantees to carve out for inferior treatment a specific class of people. While it may be true that some past initiatives have enacted rules that benefitted some people, perhaps at the expense of others, they argue that this proposed initiative, unlike those that have survived judicial review in the past, works a direct deprivation of a fundamental right on a class basis.

The alternative argument goes to the core requirements of popular democracy as practiced through the California initiative process. The law requires that when solicitors seek signatures from voters to get their measure on the ballot, they must show them wording that has been approved by the Secretary of State providing an accurate description of the proposed measure, including an appraisal of its fiscal impact. At the time this initiative was submitted to the Secretary of State, language was approved stating that the measure would have no fiscal impact because it would not change existing law. Literally speaking, that might be deemed a fair statement at the time, since the status quo was that same-sex couples could not marry. However, the Petitioners point out, at the time these petitions were being used to solicit signatures, the Supreme Court had already granted review in the Marriage Cases, thus vacating the court of appeal’s adverse ruling and placing the status of the plaintiffs’ claims in that case back in play. Thus, a truly honest evaluation of fiscal impact at the time the signatures were sought would say that the fiscal impact was unknown because it was not yet established whether the initiative would change existing law.

And, of course, in the event, with same-sex couples getting married in California from June 16 forward, the initiative, if passed, would change the state of the law, and would also, according to projections, have an adverse fiscal impact on the state, in light of the positive fiscal impact that has already begun to be generated by spending on marriage ceremonies and celebrations. The Petitioners point out that the ballot description was misleading when it was being circulated, and is now downright inaccurate.

They also point out that even though discretion and tough-question avoidance may lead courts to refrain from pre-election rulings on the revision vs. amendment question, this second point requires a pre-election determination. The court’s precedents show that if a misleading description was circulated with a proposed measure, doubt would be cast on the signatures thus obtained, and so the measure should be held not to qualify for the ballot at all.  The presence on the ballot of a question that should not be there has adverse consequences, diverting resources from other matters and diluting voter attention.

Do either of these arguments stand a chance of getting the initiative knocked off the California ballot? Hard to say. I am not an expert in California constitutional law or initiative procedure. I did find the Petition quite compelling. I’m certain that Alliance Defense Fund and Liberty Counsel and the others who were working so hard to try to prevent the Supreme Court’s decision from going into effect will do their darndest now to submit persuasive arguments as to why "the people" should be allowed to vote to deprive their fellow citizens of a fundamental right along suspect classification lines (for that is what holding an election on this proposal would constitute). One hopes the court sees through that argument and decides that only the more deliberative process of the legislature or a constitutional convention should be the mechanism for this question to be addressed further by California.